Karnataka High Court
Smt.Sharawwa W/O Bhimappa Juggannavar vs Smt.Gangawwa W/O Rangappa Nadamani @ ... on 19 February, 2016
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF FEBRUARY 2016
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
M.S.A. NO. 100005/2016 (POS)
BETWEEN:
1. SMT. SHARAWWA W/O BHIMAPPA JUGUNNAVAR,
AGE: 73 YEARS, OCC.: HOUSEHOLD WORK,
R/O SAMEERAWADI (SAIDAPUR), PIN-587 313,
TAL: MUDHOL, DIST.: BAGALKOT.
2. SHRI. IRAPPA S/O BHIMAPPA JUGUNNAVAR,
AGE: 43 YEARS, OCC.: AGRICULTURE,
R/O SAMEERAWADI (SAIDAPUR), PIN-587 313,
TAL: MUDHOL, DIST.: BAGALKOT.
3. SHRI VENKARADDI S/O HEMARADDI MANAKWAD,
AGE: 46 YEARS, OCC.: AGRICULTURE,
R/O RAINAPUR VILLAGE,
TAL: SAUNDATTI-591 126,
DIST.: BELAGAVI.
4. SMT. SUMITRA W/O RAMACHANDRA BIDARI,
AGE: 57 YEARS, OCC.: HOUSEHOLD WORK,
R/O SALAHALLI VILLAGE-591 123,
TAL: RAMDURG, DIST.: BELAGAVI.
5. SHRI AYYAPPA S/O TARAPATI
SHETTISADAVARATHI, AGE: 69 YEARS,
OCC.: AGRICULTURE, R/O KATAKOL
VILLAGE-591 123, TAL.: RAMADURG,
DIST.: BELAGAVI.
6. SHRI KENCHAPPA YAMANAPPA NARAGATTI,
AGE: 53 YEARS, OCC.: AGRICULTURE,
R/O RAINAPUR VILLAGE,
TAL: SAUNDATTI-591 126,
DIST.: BELAGAVI.
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7. SMT. BHIMAWWA W/O RAMAKRISHNA KALLIGUDDI,
AGE: 30 YEARS, OCC.: HOUSEHOLD WORK,
R/O RAINAPUR VILLAGE, TAL: SAUNDATTI-591 126,
DIST.: BELAGAVI.
8. KUMARI SUVARNA D/O RAMAKRISHNA KALLIGUDDI,
AGE: 9 YEARS, OCC.: NIL, SINCE MINOR
REPRESENTED BY HER MINOR GUARDIAN
MOTHER-APPELLANT NO.7-SMT. BHIMAWWA
RAMAKRISHNA KALLIGUDDI.
9. SHRI SOMAPPA S/O VENKAPPA KALLIGUDDI,
AGE: 60 YEARS, OCC.: AGRICULTURE,
R/O YARAGATTI VILLAGE,
TAL: SAUNDATTI-591 126,
DIST.: BELAGAVI.
10. SHRI VENKAPPA YAMANAPPA SIDNAL,
AGE: 53 YEARS, OCC.: AGRICULTURE,
R/O RAINAPUR VILLAGE,
TAL: SAUNDATTI-591 126,
DIST.: BELAGAVI.
11. SHRI BHIMAPPA VENKAPPA HULAKUND,
AGE: 43 YEARS, OCC.: AGRI & SERVICE,
R/O YARAGATTI VILLAGE,
TAL: SAUNDATTI-591 126,
DIST.: BELAGAVI.
- APPELLANTS
(BY SMT. P.G. NAIK, ADVOCATE)
AND:
1. SMT. GANGAWWA W/O RANGAPPA NADAMANI
@ KALLIGUDDI, AGE: 85 YEARS,
OCC.: HOUSEHOLD WORK,
R/O RAINAPUR VILLAGE,
TAL: SAUNDATTI-591 126,
DIST.: BELAGAVI.
2. SMT. LAKKAWWA W/O RAMAPPA
HUNASIKATTI, AGE: 69 YEARS,
OCC.: HOUSEHOLD WORK,
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R/O: TORANAGATTI VILLAGE,
TAL.: RAMADURG-591 123,
DIST.: BELAGAVI.
3. SMT. SATTEWWA W/O SATTEPPA
ANNIGERI, AGE: 56 YEARS,
OCC.: HOUSEHOLD WORK,
R/O RAINAPUR VILLAGE,
TAL: SAUNDATTI-591 126,
DIST.: BELAGAVI.
4. SMT. RUKAMAWWA W/O KRISHNAPPA
YARAGATTI, AGE: 52 YEARS,
OCC.: HOUSEHOLD WORK,
R/O YARAGATTI VILLAGE,
TAL: SAUNDATTI-591 126,
DIST.: BELAGAVI.
- RESPONDENTS
THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER
SECTION XLIII RULE 1(u) OF CPC 1908, AGAINST THE
JUDGEMENT AND DECREE DATED 07.12.2015 PASSED IN R.A.
NO. 150/2015 ON THE FILE OF THE VI ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BELAGAVI, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
23.04.2015 PASSED IN O.S. NO. 81/2011 ON THE FILE OF THE
SENIOR CIVIL JUDGE, SAUNDATTI, DISMISSING THE SUIT
FILED FOR DECLARATION, PARTITION AND SEPARATE
POSSESSION & ETC.
THIS MISCELLANEOUS SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
1. Defendant nos.1 to 4, 8 to 10, 11A, 11B, 12 and 13 have preferred this miscellaneous second appeal, assailing judgment and decree passed in R.A. No. 150/2015 by the 6th Addl. District & Sessions Judge, Belagavi, dated 07.12.2015 by which, the matter has been remanded to the trial Court for giving a finding on all issues raised by the trial Court. The appellants who have preferred this second appeal are aggrieved by the order of remand.
2. Briefly stated, the facts are that respondent no.1- plaintiff filed O.S. No. 81/2011 seeking a decree for partition and separate possession by metes and bounds to an extent of 1/3rd share in respect of A and B schedule properties and declaration that the alleged adoption deed executed in favour of Bheemappa Juganavar dated 08.08.1945 is illegal, null and void and not binding on the plaintiff and to further declare that the sale deeds executed by defendant nos.1 and 2 in collusion with defendant nos.3 to 5 in favour of defendant nos.8 to 12 5 are illegal and not binding on the plaintiff and for mesne profits and to furnish accounts of suit properties by defendant nos.1 and 2 till date of filing of suit.
Schedule A consists of landed properties and schedule B consists of residential properties. According to the plaintiff, Bheemappa son of Yallappa Juganavar was the original propositus who died in the year 1932 leaving behind his widow, Tangevva and three daughters namely, Basavva, Parvatevva and Gangavva. Basavva was married to Tammanna. Tammanna died in the year 1959 and Basavva died in the year 1985 leaving behind a son, Bheemappa and two daughters, Bagavva and Sumitra. Parvatevva was married to Rangappa. They died in the year 1992 and 1965 respectively. They had three daughters namely, Lakkavva, Sattevva and Rukmavva. Gangavva is the plaintiff who was married to Rangappa, who died in the year 1999. The mother of Basavva, Parvatevva and Gangavva, namely Tangevva died in the year 1945. Prior to her death she had taken in adoption 6 Bheemappa, son of Basavva and Tammanna. The said adoption is questioned by the plaintiff Gangavva, the plaintiff has also sought a declaration that the sale deeds executed by defendant nos.1 and 2 are not binding on her. The said sale deeds are dated 20.08.1998, 17.10.2008, 18.12.2008 and 20.09.1988. Apart from this, plaintiff has sought for partition and separate possession of her 1/3rd share in suit A and B schedule properties.
3. After the suit summons and Court notices were served on the defendants, they appeared through their respective counsel. Defendant nos. 2, 3, 7, 8, 9 to 11, 12 and 13 filed their written statement while defendant nos.1 and 4 adopted the written statement filed by defendant no.2. These defendants sought for dismissal of the suit.
4. On the basis of the rival pleadings the trial Court framed the following issues for its consideration.
1. Whether the plaintiff proves the genealogy furnished in the plaint?
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2. Whether the plaintiff proves that all the suit schedule properties are ancestral joint family properties of plaintiff and defendants?
3. Whether the plaintiff further proves that the sale deeds executed by D1 to D5 in favour of D8 to D12, are illegal?
4. Whether the plaintiff further proves that adoption deed dated 8.8.1945 is illegal, null and void?
5. Whether the plaintiff is entitled for 1/3rd share in all the suit properties?
6. Whether the plaintiff is entitled for mesne properties?
7. Whether D12 proves that he is bonafide purchaser of property bearing Sy. No. 473, measuring 4 acres 39 guntas under registered sale deed dated 17.10.2008?
8. Whether the suit is barred by limitation?
9. Whether the suit is not valued properly for the purpose of C.F. and C.F. paid is insufficient?
10. What order, or decree?
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In support of her case plaintiff examined one Krishnappa Rangappa Kalakaji, her power of attorney holder as P.W.1. He produced 44 documents which were marked as Exs.P.1 to 44 while the defendants let in evidence of six witnesses and they relied upon 72 documents which were marked as Exs.D.1 to 72. Though evidence was recorded in detail, the trial Court answered issue no.8 in the affirmative. Accordingly, it dismissed the suit as barred by limitation. It held issue nos.1 to 7 and 9 as "does not survive for consideration".
5. Being aggrieved by the judgment and decree of the trial Court dated 23.04.2015 plaintiff filed R.A. No. 150/2015 before the first appellate Court, which framed the following points for its consideration.
1) Whether the learned trial judge is justified in answering Issue no.8 only, while deciding the suit, after recording evidence of both the parties on all issues?9
2) Whether the judgment and decree passed in OS No. 81/2011, needs interference by this court?
3) What Order?
6. It answered point no.1 in the negative, point no.2 in the affirmative and remanded the matter to the trial Court with a direction to record its findings on all the issues. The parties were directed to appear before the trial Court on 07.01.2016.
7. Being aggrieved by the judgment and decree of the first appellate Court dated 07.12.2015, defendant nos.1 to 4, 8 to 10, 11A, 11B, 12 and 13 have preferred this appeal.
8. I have heard learned counsel for the appellants. She submitted that the first appellate Court was not right in remanding the matter to the trial Court to give its findings on all the issues raised by the trial Court without disturbing finding of the trial Court with regard to issue no.8. She contended that the trial Court dismissed the suit on the 10 basis of its answer given to issue no.8. That issue was with regard to the suit being barred by limitation. The trial Court held that plaintiff's suit was hopelessly barred and therefore while dismissing the suit on the issue of limitation thought it fit not to give its findings on the other issues. Plaintiff being aggrieved by the dismissal of the suit filed regular appeal before the first appellate Court but the first appellate Court has not disturbed the finding of the trial Court on issue no.8. Instead it has simply remanded the matter to the trial court to give its findings on all other issues.
9. She contended that if the suit was barred by limitation, then there was no need for the trial Court to go into other issues but the first appellate Court while answering points for consideration has held that the trial Court was not justified in answering only issue no.8 dealing with limitation and that on all other points it had to give its finding. She contended that the order of remand is frivolous and unnecessary and that the judgment and 11 decree of the trial Court ought to have been affirmed by the first appellate Court.
10. Having heard learned counsel for the appellants and on perusal of the material on record it is noted that the first respondent-plaintiff has sought multiple reliefs in the suit. The declaration is not only with regard to the illegality of the adoption but also with regard to the sale deeds executed by defendant nos.1 and 2. Though the adoption is said to have taken place in the year 1945 and the same was challenged in the year 2007, the fact remains that the relief of declaration regarding sale deeds executed by defendant nos.1 and 2 in favour of defendant nos.8 to 12 are not binding on the plaintiff is another relief which he has sought. That relief has been sought as the same were made right from the year 1998 upto the year 2008.
11. In so far as those sale deeds are concerned, a finding ought to have been given as to whether the challenge to the sale deeds was within the period of 12 limitation and if it was so, then as to whether they were legal or not. The trial Court has not done that exercise. That apart, the trial Court has also failed to give its finding as to whether the plaintiff was entitled to the relief of partition and separate possession by metes and bounds to an extent of 1/3rd share in suit A and B schedule properties, prima facie, that relief may not have been barred under the law of limitation.
12. It is in the aforesaid context that the first appellate Court remanded the matter to the trial Court to examine the case on all issues and to give its findings thereon. Of course the first appellate Court has not specifically set aside the findings given by the trial Court on issue no.8 with regard to the limitation aspect but the fact remains that the judgment and decree of the trial Court has been set aside. In that view of the matter, I do not find any infirmity in the order of remand made by the first appellate Court by which the trial Court has been directed to give its 13 finding on all issues raised in the suit. Therefore, there is no merit in the appeal. Appeal is dismissed.
In view of dismissal of the appeal, I.A.No. 1/2016 also stands dismissed.
Sd/-
JUDGE bvv