Karnataka High Court
Smt.Laxmi W/O. Gadigeppa Raynal vs Hanumantappa Bheemappa Kamadolli on 6 February, 2025
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NC: 2025:KHC-D:2349-DB
RFA No. 100071 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO.100071 OF 2020 (PAR/POS)
BETWEEN:
1. SMT. LAXMI W/O. GADIGEPPA RAYNAL
AGE : 55 YEARS, OCC : AGRICULTURE,
R/O : MALALI, KUNDGOL TALUK,
DHARWAD DISTRICT-581113
...APPELLANT
(BY SRI. S.G. KADADAKATTI AND
SRI. LINGESH V KATTEMANI, ADVS)
AND:
1. HANUMANTAPPA BHEEMAPPA KAMADOLLI
AGE : 65 YEARS, OCC : AGRICULTURE,
R/O : MALALI, KUNDGOL TALUK,
DHARWAD DISTRICT-581113
2. RAMAPPA BHEEMAPPA KAMDOLLI
MOHANKUMAR AGE : 53 YEARS, OCC : AGRICULTURE,
B SHELAR
R/O : MALALI, KUNDGOL TALUK,
Digitally signed by DHARWAD DISTRICT-581113
MOHANKUMAR B
SHELAR
Date: 2025.03.01
11:16:53 +0530
3. BHEEMAPPA RAMAPPA KAMDOLLI
AGE : 25 YEARS, OCC : AGRICULTURE,
R/O : MALALI, KUNDGOL TALUK,
DHARWAD DISTRICT-581113
4. MAHESH RAMAPPA KAMDOLLI
(CALLING HIMSELF AS MAHESH
A/O. BASAPPA KAMDOLLI)
AGE : 23 YEARS, OCC : AGRICULTURE,
R/O : MALALI, KUNDGOL TALUK,
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NC: 2025:KHC-D:2349-DB
RFA No. 100071 of 2020
DHARWAD DISTRICT-581113
5. SMT. BASAVANEVVA W/O. RAMAPPA KAMDOLLI
AGE : 45 YEARS, OCC : AGRICULTURE,
R/O : MALALI, KUNDGOL TALUK,
DHARWAD DISTRICT-581113
6. SMT. GIRIJAVVA W/O. RAMANAGOUDA PATIL
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O: TUMKUR BUILDING, SIDDESHWAR NAGAR,
UNKAL CROSS, HUBBALLI, DHARWAD-580022.
7. SMT. NEELAVVA W/O.SIDDAPPA TAMBAKADA
AGE : 70 YEARS, OCC : AGRICULTURE,
R/O : MALALI, KUNDGOL TALUK,
DHARWAD DISTRICT-581113.
8. SANTOSHKUMAR LAXMAN SHIRAHATTI
AGE: 38 YEARS, OCC: PVT.JOB,
R/O. SANGOLLI RAYANNA NAGAR,
HOUSE NO.205, BHYRIDEVEAR KOOPA,
HUBBALLI, DHARWAD DISTRICT-581113.
...RESPONDENTS
(BY SRI. VISHWANATH S BICHAGATTI, ADV FOR R2 TO R6
SMT. SHARMILA M PATIL, ADV FOR R3,
NOTICE TO R1 & R7 ARE SERVED)
RFA FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DTD.13.11.2019 PASSED IN
O.S.NO.227/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, KUNDGOL, DISMISSING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THERE IN AS UNDER:
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
CORAM: AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
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NC: 2025:KHC-D:2349-DB
RFA No. 100071 of 2020
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellant, challenging the judgment and decree dated 13.11.2019 passed in O.S.No.227/2014 by the learned Senior Civil Judge and JMFC, Kundgol.
2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was the plaintiff, and the respondents were the defendants.
3. Brief facts leading rise to the filing of this appeal are as follows :
The plaintiff filed a suit against the defendants for partition and separate possession. One late Bheemappa Kamadolli was the plaintiff's father. Defendants No.1 and 2, and the late Basappa are the brothers of the plaintiff. Defendants No.6 and 7 are the sisters of the plaintiff. Deceased Basappa, the brother of the plaintiff died about three years ago without marriage. Defendants No.3 and 4 -4- NC: 2025:KHC-D:2349-DB RFA No. 100071 of 2020 are the children, and defendant No.5 is the wife of defendant No.2. Defendant No.8 is the mother of plaintiff and defendant No.1, 2, 6, and 7. The Mother of the plaintiff died during the pendency of the suit. The suit schedule properties are the ancestral properties, and the same were acquired from the income of the ancestral properties. The plaintiff and defendants No.1 to 8 are in joint possession and enjoyment of the suit schedule properties, and the members of Hindu joint Family. No partition is effected between the plaintiff and defendants.
4. The Basappa i.e., the brother of the plaintiff was suffering from physical and mental illness. By taking undue advantage of Basappa's illness, defendants No.2 to 5 have created the fake adoption deed colluding with their supporters. Defendant No.4 was never taken into adoption by Basappa. Basappa never executed any adoption deed. The plaintiff being a legal heir, demanded partition and separate possession, but the defendants refused to effect partition. Hence, a cause of action arose for the plaintiff to -5- NC: 2025:KHC-D:2349-DB RFA No. 100071 of 2020 file a suit for partition and separate possession. Accordingly, prays to decree the suit.
5. Defendant No.1 filed a written statement admitting that, the suit schedule properties are the ancestral properties, and they are acquired from the income of the ancestral properties. It is contended that, the defendant No.1, and his siblings have effected partition regarding the landed properties, and house properties situated at Malali village. They spent huge money to perform the marriage of the plaintiff and defendants No.6 and 7, and that they have given gold to their sisters. Hence, prays to dismiss the suit against defendant No.1.
6. Defendant No.3 filed a written statement admitting that the Basappa died without marriage. It is the case of defendant No.3 that, on 15.11.1970, a partition took place, and the partition was reduced into writing to that effect. The plaintiff is fully aware about the partition that took place on 15.11.1970. It is contended that, -6- NC: 2025:KHC-D:2349-DB RFA No. 100071 of 2020 Bheemappa had purchased lands bearing Sy.No.392/3A/15 from his income. Girija W/o. Ramangouda Patil i.e., defendant No.6 name was mutated in the revenue records vide ME No.6563, and the same was challenged by the plaintiff, and defendants No.1 to 5, and 7. After a partition Bheemappa, Venkangouda, and Desai jointly purchased the 392/3A, and in a partition amongst the said purchases the land bearing Sy.No.392/3A/15 was allotted to the share of Bheemappa and the name of Girijavva was mutated in the revenue records of this land after the death of Bheemappa. It is contended that, VPC No.231 standing in the name of defendant No.1, is also not included in the suit.
Late Bheemappa bequeathed the land in Sy.No.197/B plot No.13 of Unkal village in favour of Basappa. Basappa became the owner by a will executed by Bheemappa. Basappa had sold the said plot to Santhosh Kumar i.e., defendant No.9 and defendant No.1 had sold 1 acre 20 guntas in Sy.No.72/1. It is contended that, the suit filed by the plaintiff is barred by limitation and defendant No.3 -7- NC: 2025:KHC-D:2349-DB RFA No. 100071 of 2020 perfected his title over the property by way of adverse possession. Some of the properties have been alienated long back which is well within the knowledge of the plaintiff, and she has not raised any objections. Hence, prays to dismiss the suit.
7. Defendants No.2 to 6 and 8 filed a memo adopting a written statement filed by defendant No.3. The plaintiff amended the plaint, and defendant No.3 filed an additional written statement contending that, Fakeeravva executed a will dated 06.01.2017 in favour of defendant No.3 bequeathing her share in favour of defendant No.3. Defendant No.9 is a purchaser of item No.16 of 'A' schedule property. The suit is barred by limitation, and accordingly, prays to dismiss the suit.
8. The trial Court, based on the pleadings of the parties, framed the following issues, and additional issues:
ISSUES
1. Whether plaintiff proves that schedule properties are the joint family properties of the plaintiff, defendants No. 1, 2, 6, 7 -8- NC: 2025:KHC-D:2349-DB RFA No. 100071 of 2020 and 8 and in the schedule properties plaintiff is having 1/6th share?
2. Whether the defendants prove that there is already partition in the joint family?
3. Whether the defendants prove that they became owner of the schedule properties by adverse possession?
4. Whether the defendant No.4 proves that he is the adopted son of Bhimappa Kamadolli?
5. Whether the suit is bad for non-joinder of the necessary parties?
6. Whether the suit is bad for partial partition?
7. Whether the court fee paid is insufficient?
8. Whether the plaintiff is entitled for the reliefs claimed in the suit?
9. What order or decree?
Additional issues dated 01.12.2014
10. Whether defendant No.9 proves that the suit is barred by limitation in respect of B(3) of schedule property?
11. Whether defendant No.9 proves that he is the bonafide purchaser of A(16) schedule property for valid consideration, hence he is entitled for the said property on equity in case of decreeing of the suit?
Additional Issue dated 05.06.2018 -9- NC: 2025:KHC-D:2349-DB RFA No. 100071 of 2020
12. Whether defendant No.9 proves that he is entitle for share in suit schedule properties?
9. The Plaintiff to substantiate his case, examined himself as PW-1, marked 22 documents as Exs.P.1 to P.22. Defendant No.1 was examined as DW-1, examined 3 witnesses as DW2 to 4, and marked 128 documents as Exs.D.1 to D.128. After recording the evidence, hearing on both sides, and on the assessment of oral and documentary evidence, the trial Court answered issues No.1, 4, 5, 6 and additional issues No.11 and 12 in the affirmative. Issues No.2, 3, 7, 8, and additional issue No.10 in the negative, and Issue No.9 as per the final order.
10. The suit of the plaintiff was dismissed, as all the joint family properties are not included in the suit, and defendant No.9 is the bonafide purchaser of item No.16A of the suit 'A' schedule property. The plaintiff, aggrieved by the judgment and preliminary decree dated 13.11.2019 passed in O.S.No.227/2014, filed this Regular First Appeal.
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NC: 2025:KHC-D:2349-DB RFA No. 100071 of 2020
11. Heard the learned counsel Sri. Amit for learned counsel Sri. S.G. Kadadakatti for the plaintiff, and also the learned counsel for the defendants.
12. Learned counsel for the plaintiff submits that, the trial Court committed an error, in dismissing the suit on the ground that, all the properties were not included in the suit. He submits that, when the trial Court has answered issue No.1 in the affirmative, the trial Court ought to have decreed the suit, and on the contrary, dismissed the suit. The impugned judgment passed by the trial Court is arbitrary, and erroneous. Hence, he prays to allow the appeal.
13. Per contra, learned counsel for the defendants supported the impugned judgment, and submitted that the suit for partial partition is not maintainable, and the plaintiff has not included the other existing joint family properties of the plaintiff, and defendants. The trial Court was justified in dismissing the suit, on the ground that the
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NC: 2025:KHC-D:2349-DB RFA No. 100071 of 2020 suit for partial partition is not maintainable. Hence, prays to dismiss the appeal.
14. Perused the records, and considered the submissions of the learned counsel for the parties.
15. The points that arises for our consideration are:
1) Whether the suit filed by the plaintiff for partial partition is maintainable?
2) Whether the plaintiff proves that the judgment and decree passed by the trial Court is perverse and arbitrary?
3) What order or decree?
Re Point -1 :
16. The plaintiff to substantiate his case, has examined himself as PW-1, and deposed that, Bheemappa was the original propositus. He had a wife i.e., Fakeeravva-defendant No.8 and the plaintiff, defendants No.1, 2, 6, 7 are the children of Bheemappa, and it is contended that, the suit schedule properties are the ancestral and joint family properties of the plaintiff, and defendants 1 to 8. The plaintiff and defendants No.1 to 8 are the members of the Hindu joint family, and no
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NC: 2025:KHC-D:2349-DB RFA No. 100071 of 2020 partition is effected. To prove that, the suit schedule properties are the joint family properties of the plaintiff and defendants No.1 to 8, the plaintiff has produced the revenue records, the certified copy of the revenue records are marked as Exs.P.1 to P.18. ExP.19 is the property tax register. Ex.P.20 is the notice. Ex.P.21, and P.22 are the replies to the notice.
17. During the course of the cross-examination of PW-1, the defendants suggested to PW-1 that, the plaintiff has not included Sy.No.392/3A/1 of Unkal village, Sy.No.9/1 of Malali village, Sy.No.72/1 Shiggaon Taluk, VPC No.231 of Malali village, and Sy.No.392/3A/4 of Unkal village. The said suggestion was not denied by the PW-1.
18. Defendants have taken a specific defense in the written statement that, the plaintiffs have not included the other existing ancestral joint family properties of the plaintiff and defendants No.1 to 8. Defendant No.1 was examined as DW-1. He reiterated the written statement averments in the examination-in-chief, and examined
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NC: 2025:KHC-D:2349-DB RFA No. 100071 of 2020 three witnesses as DW-2 to 4, and produced the documents marked as Exs.D.1 to D.128. The defendants have produced the sale deed at Exs.D.109 and D.110 regarding the land Sy.No.392/3A/1 of Unkal village. Ex.D.111 is the certified copy of the Gift Deed of Sy.No.9/1 of Malali village. Ex.D.52 is the registered sale deed dated 16.03.2015 of Sy.No.72/1 of Shiggaon Taluk. Ex.D.112 is the mutation register extract of Sy.No.392/3A/4 of Unkal village and Ex.D.65 is the VPC extract of VPC No.231 of Malali village. The said properties were not included in the suit. In a suit for partition and separate possession, the party is required to include all the suit schedule properties, and to array all the parties to the suit. Admittedly, in the instant case, the plaintiff has not included the other existing joint family properties.
19. From the perusal of the records, it discloses that plaintiffs has not included the properties mentioned above. In a partition suit, all the contesting properties to be included in the suit ordinarily a suit for partial partition
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NC: 2025:KHC-D:2349-DB RFA No. 100071 of 2020 may not be entertained. The parties have brought on record, by way of pleadings and/or other materials, apart from the properties mentioned by the plaintiff in his plaint. There are some other properties, that would be the subject matter of partition. The Court would be entitled to pass a decree even in relation thereto. Further, the coordinate bench of this Court in the case of G.M. Mahendra Vs. G.M. Mohan and another reported in 2011 (4) KCCR 2461 held that, the plaintiff in a suit for partition is required to include the whole of the claim which is entitled to make in respect of the cause of action. But, it is also open for the plaintiff to relinquish any portion of his claim to bring the suit within the jurisdiction of any Court.
20. If the plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim, later on, he cannot sue in respect of portion so omitted or relinquished, and similarly sub rule of Rule 2 of Order 2 of CPC also provides for the plaintiff to seek the permission
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NC: 2025:KHC-D:2349-DB RFA No. 100071 of 2020 of the Court to institute a suit in respect of any one of the cause of action, at a future. There is no proper explanation by the plaintiff, why the plaintiff has not included or omitted to include the other existing joint family properties. As the cause of action in the present suit was also there as on the date of institution of the suit, held that the suit for partial partition is not maintainable. The plaintiff failed to include the other joint family properties. In view of the above discussion, the trial Court has rightly dismissed the suit, as all the joint family properties are not included in the suit properties. Hence, in view of the above discussion, we answer point No.1 in the negative. Re-Point -2
21. The trial Court, considering Exs.D.109, D.110, D.111, D.52, D.65, D.112, has rightly held that, the suit for partial partition is not maintainable, and rightly dismissed the suit of the plaintiff. Hence, we do not find any error in the impugned judgment. Accordingly, we answer point No.2 in the negative.
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NC: 2025:KHC-D:2349-DB RFA No. 100071 of 2020 Re. point -3
22. In view of the above discussion, we have already answered points No.1 and 2 in favour of the defendant, accordingly, we proceed to pass the following:
ORDER
(i) The Appeal is dismissed.
(ii) The impugned judgment and decree dated 13.11.2019 passed by the trial Court is hereby confirmed.
(iii) However, the liberty is reserved to the plaintiff to file a fresh suit, including the other joint family properties, if so advised.
Sd/-
(ASHOK S. KINAGI) JUDGE Sd/-
(UMESH M ADIGA) JUDGE BVK CT: BSB/List No.: 1 Sl No.: 4