Karnataka High Court
Manjunath Tirakappa Malagi vs Gurusiddappa Tirakappa Malagi on 23 September, 2022
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
R.F.A. NO. 1295 OF 2007 (DEC/PAR)
BETWEEN:
1 . MANJUNATH TIRAKAPPA MALAGI
AGE: 27 YEARS
OCC: AGRICULTURE
R/O. GHANTIKERI ONI, HUBLI
TALUK: HUBLI
DIST: DHARWAD-580 020.
2. MALLIKARJUN TIRAKAPPA MALAGI
AGE: 24 YEARS
OCC: STUDENT
R/O. GHANTIKERI ONI, HUBLI
TALUK: HUBLI
DIST: DHAWAD-580 020.
3. PREMAVATI
W/O. TIRAKAPPA MALAGI
AGE: 46 YEARS
OCC: HOUSEHOLD WORK
R/O: GHANTIKERI ONI, HUBLI
TALUK: HUBLI
DIST: DHARWAD-580 020.
...APPELLANTS
(BY SRI JAINAR, ADVOCATE)
2
AND:
1. GURUSIDDAPPA TIRAKAPPA MALAGI
AGE: 75 YEARS, OCC: AGRICULTURE
R/O. JOLAD ONI, HUBLI
TALUK: HUBLI
DIST: DHARWAD-580 021.
2. TIRAKAPPA GURUSIDDAPPA MALAGI
AGE: 53 YEARS, OCC: AGRICULTURE
R/O. JOLAD ONI, HUBLI
TALUK: HUBLI
DIST: DHARWAD-580 021.
3. BASAPPA GURUSIDDAPPA MALAGI
AGE: 51 YEARS, OCC: AGRICULTURE
R/O.JOLAD ONI, HUBLI
TALUK: HUBLI
DIST: DHARWAD-580 021.
4. VIRUPAXAPPA GURUSIDDAPPA MALAGI
AGE: 50 YEARS, OCC: AGRICULTURE
R/O.JOLAD ONI, HUBLI
TALUK:HUBLI
DIST: DHARWAD-580 021.
5. NAGAPPA GURUSIDDAPPA MALAGI
AGE: 47 YEARS, OCC: AGRICULTURE
R/O.JOLAD ONI, HUBLI
TALUK:HUBLI
DIST: DHARWAD-580 021.
6. HANUMANTAPPA GURUSIDDAPPA MALAGI
AGE: 45 YEARS, OCC: AGRICULTURE
R/O.JOLAD ONI, HUBLI
TALUK: HUBLI
DIST: DHARWAD-580 021.
7. RUDRAPPA GURUSIDDAPPA MALAGI
AGE: 33 YEARS, OCC: AGRICULTURE
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R/O.JOLAD ONI, HUBLI,
TALUK: HUBLI
DIST: DHARWAD-580 021.
...RESPONDENTS
(BY SRI RAMESH I. ZIRALI &
SRI SHIVARAJ S. BOLLOLI, ADVOCATES FOR R1 & R3 TO R6;
SRI VIGNESHWAR S. SHASTRI, ADVOCATE FOR C/R1 & R3 TO R6;
SRI RAVI G. SABHAHIT, ADVOCATE FOR R2; R7 SERVED)
THIS RFA IS FILED U/S. 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 02.03.2007 PASSED IN
OS.NO.1/2003 ON THE FILE OF THE II ADDL. CIVIL JUDGE
(SR.DN.) HUBLI, DISMISSING THE SUIT FOR DECLARATION AND
PARTITION.
THIS APPEAL COMING ON FOR ORDERS THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING, HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and decree passed in O.S.No.1/2003 dated 02.03.2007 on the file of the II Additional Civil Judge, (Sr.Dn.), Hubli, dismissing the suit filed by the plaintiffs.
2. The parties are referred to as per their original ranking before the Trial Court for the purpose of brevity and convenience.
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3. The factual matrix of the case of the plaintiffs before the Trial Court is that the judgment and decree in O.S.No.58/1999 dated 18.01.2000 passed by the Additional Civil Judge, (Sr. Dn.), Hubli is illegal, null and void and not binding on them and their share in the suit property and in the alternative for partition of 3 acres of their shares from defendant Nos.1 and 3 to 6 by metes and bounds.
4. It is contended that the plaintiff Nos.1 and 2 are the sons and plaintiff No.3 is the wife of defendant No.2 and defendant No.1 is the father of defendant No.2 and defendant Nos.3 to 6 are brothers of defendant No.2. It is contended that there was a registered partition between defendant Nos.1 to 6 in respect of ancestral property in the year 1974 which was registered on 09.08.1974 and all of them started living separately taking their respective shares. It is contended that the suit property was purchased by the grand-mother of defendant No.2, Rudravva, when he was 15 years old and that defendant 5 No.2 is in possession and enjoyment of the same along with the share fallen to him in the partition of the year 1974. It is also contended that the suit property is purchased from the joint family funds and stands in the name of defendant No.2 and therefore, he executed an agreement of sale not only in respect of 5 acres for which there was agreement of sale, but also additional 2 acres of land in Sy.No.172 for consideration of Rs.25,000/- which was purchased by paying balance of Rs.9,000/- in addition to Rs.8,000/- already paid on 19.11.1990.
5. It is further contended that the suit property was purchased in the name of defendant No.2 but, by defendant No.1 and amount was paid by defendant No.1 being the kartha of the joint family and suit property was thrown into common co-parcenary stock of joint family and all the defendants owned and possessed it jointly till decree dated 18.01.2000 in O.S.No.58/1999, as it was left by oversight from partition which took place on 09.08.1974. It is alleged 6 that plaintiffs forced defendant No.2 to give up his rights over the property which had fallen to his share and on his refusal, they beat him up and threw him out of the house in CTS No.2646 and from then onwards, defendant No.2 is under the shelter of other defendants. Inspite of the same, the plaintiffs filed the suit in O.S.No.219/1998 for partition of suit property and also CTS No.2646 and Sy.No.55, Kotagondahunshi and it was decreed giving plaintiffs half share in CTS No.2646, Sy.No.55 and 1 acre out of 7 acres in the present suit property and they had filed FDP No.26/02 for drawing of final decree as per preliminary decree in O.S.No.219/1998. It is also alleged in the plaint that the plaintiffs had filed Crl.Misc.No.142/2000 before JMFC-I, Hubli for maintenance alleging that defendant No.2 neglected and refused to maintain plaintiff No.3 and a monthly maintenance of Rs.300/- was ordered on 06.02.2003 and defendant No.2 is paying it regularly to her. The defendants have disputed the correctness of the 7 Court fee paid and contend that the suit is not maintainable in view of the bar under Order 23, Rule 3A of C.P.C. and also under Order 2, Rule 2 of C.P.C. The defendants also contend that the suit is hit by principles of resjudicata and also estoppel.
6. Based on the pleadings, the Trial Court has framed the following issues:
1. Whether plaintiffs prove that suit property is purchased in the name of defendant No.2 by joint family funds as alleged in the plaint?
2. Whether plaintiffs prove that defendant No.2 addicted to bad vices and started to reside with other defendants as alleged in the plaint?
3. Whether defendant No.1 and 2 prove that plaintiffs driven away the defendant No.2 by threatening him with dire consequences and thereafter he was forced to take shelter in the houses of 8 other defendants as alleged in para-9 of the Written Statement?
4. Whether plaintiffs prove that defendants without giving any opportunity to the plaintiffs have compromised the O.S.No.58/1999 as alleged in the plaint?
5. Whether defendant No.1 and 2 prove that suit of the plaintiffs is not properly valued and Court fee paid is not proper?
6. Whether defendant No.1 and 2 prove that suit of the plaintiffs is not maintainable in view of the bar contemplated under Order 23, Rule 3A C.P.C.?
7. Whether defendant No.1 and 2 prove that suit of the plaintiffs is hit by provisions of Order 2 Rule 2 C.P.C. as alleged in the written statement?
8. Whether defendant No.1 and 2 prove that suit of the plaintiffs is hit by provisions of resjudicata as alleged in para-22 of the written statement?9
9. Whether defendant No.1 and 2 prove that they are entitled for compensatory costs of Rs.5,000/-?
10. Whether plaintiffs are entitled for reliefs sought for?
11. What Order of decree?
7. The plaintiffs, in order to prove their case, examined two witnesses and marked ten documents. To disprove the case of the plaintiffs, the defendants have examined two witnesses and got marked two documents.
8. The Trial Court, after considering both oral and documentary evidence available on record, answered issue Nos.1, 3, 6 and 7 as 'affirmative', in coming to the conclusion that the suit property is purchased in the name of defendant No.2 out of joint family funds. The Trial Court arrived at the conclusion that the defendant Nos.1 and 2 have proved that the plaintiffs driven away defendant No.2 by threatening him with dire consequences and thereafter, he was forced to take shelter in the house of other 10 defendants. The Trial Court also comes to the conclusion that the defendant Nos.1 and 2 have proved that suit of the plaintiffs is not maintainable, in view of the bar contemplated under Order 23, Rule 3A of C.P.C. since, their father and husband was also a party to the suit. The Trial Court also comes to the conclusion that defendant Nos.1 and 2 have proved that the suit of the plaintiffs is hit by provisions of Order 2, Rule 2 of C.P.C. The Trial Court has answered issue No.8 as 'partly in the affirmative' that there would be a resjudicata in respect of the present suit for seeking the relief of partition and ordered to pay a cost of Rs.3,000/-. The other issues framed are answered as 'negative'.
9. Being aggrieved by the judgment and decree of dismissal of the suit, the present appeal is filed.
10. The learned counsel appearing for the appellants in his argument vehemently contended that the finding of 11 the Trial Court is against the oral and documentary evidence available on record. It is his contention that the Trial Court failed to appreciate that respondent No.2 being the kartha of the family is liable to protect the interest of the appellants. It is also contended that he entered into a compromise decree with respondent Nos.1 to 7 in O.S.No.58/1999 and the same is not binding on the appellants and it is against the interest of the plaintiffs/appellants. The said decree is also obtained behind the back of the plaintiffs and the said decree is obtained only to defeat the rights and interest of the plaintiffs.
11. It is also further contended that the Trial Court, having recorded the finding that the decree in O.S.No.219/1998 is not executed, inspite of it, dismissed the suit, as there was a suit for partition and the very approach of the Trial Court is erroneous. It is contended that, though the Trial Court comes to the conclusion that 12 the suit property being the ancestral property which had fallen to the share of respondent No.2 exclusively and plaintiff Nos.1 and 2 are entitled for their share in the suit property, failed to set aside the judgment and decree passed in O.S.No.58/1999. In fact, the appellants being affected with their right and interest over the property have filed the suit for declaration.
12. Per contra, learned counsel appearing for the respondents would vehemently contend that issue No.6 is very clear with regard to the dispute between the parties i.e., whether the suit is maintainable, in view of the bar contemplated under Order 23, Rule 3A of C.P.C. and detailed order has been passed and there was also a decree in O.S.No.219/1998 granting 1/4th share in respect of the very suit schedule property and FDP is also filed. When such being the case, the very suit itself is not maintainable. The Trial Court also, while answering issue No.7 comes to the conclusion that the suit of the plaintiffs is hit by 13 provisions of Order 2, Rule 2 of C.P.C. and they have also not filed any application in the suit in O.S.No.58/1999. When such being the case and when already there was a decree in favour of the plaintiffs in O.S.No.219/1998, the Trial Court has rightly come to the conclusion that the suit is also hit by resjudicata since, the matter was already decided but, only answered the issue with regard to the earlier suit in O.S.No.58/1999 as 'negative' in coming to the conclusion that, in the suit in O.S.No.219/1998, the same was not the issue. Hence, there is no merit in the appeal and the same is to be dismissed.
13. Learned counsel for the appellants has also filed an application under Order 41, Rule 27 read with Section 151 of C.P.C. praying this Court to allow the application and permit the appellants to produce the registered partition deed dated 07.08.1974. In the affidavit, it is contended that there was a partition and partition deed was also registered and the respondents colluding with each other 14 had filed the suit in O.S.No.58/1999 illegally with the sole motive to defraud the appellants and with the malafide intention not to give the share in R.S.No.172/2002 and could not produce the documents in the suit. However, this application is orally resisted by the respondents.
14. The learned counsel appearing for the defendants orally opposed the application that the said document is not required to consider the dispute in issue between the parties.
15 Having heard the respective counsel and also on perusal of the material available on record, both oral and documentary evidence, the points that would arise for consideration of this Court are:
(i) Whether the Trial Court has committed an error in dismissing the suit answering issue Nos.6 and 7 as 'affirmative' and issue No.8 as 'partly affirmative', inspite of answering issue No.1 as 'affirmative' that 15 the suit property is purchased in the name of defendant No.2 out of joint family funds?.
(ii) Whether the learned counsel for the appellants have made out the grounds to allow the application filed under Order 41, Rule 27 read with Section 151 of C.P.C.?
(iii) What order?
Point No.(i) 16 Having perused the material available on record and pleadings of the plaintiffs and defendants in the plaint and written statement, it has emerged during the course of the evidence that the defendant Nos.1 and 2 have proved that the plaintiffs have driven away the defendant No.2, who is the father of the plaintiff Nos.1 and 2 and husband of defendant No.3 and thereafter, he was forced to take shelter in the house of other defendants and there is no dispute with regard to the said fact.
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17. The main contention is that in the suit in O.S.No.58/1999, the plaintiffs are not the parties and their father i.e., defendant No.2 is arrayed as party to the suit. Having perused the plaint in O.S.No.58/1999 filed by the father of the defendant No.2 and defendant Nos.3 to 6, they have categorically admitted that the suit schedule property was left out, while partitioning the property. It is also important to note that, in the plaint, it is specifically pleaded that the same is also a joint family property. Hence, I do not find any error committed by the Trial Court in coming to the conclusion that the suit schedule property is purchased in the name of defendant No.2 out of the joint family funds.
18. The main contention of the learned counsel for the appellants is that, the Trial Court, inspite of answering issue No.1 as 'affirmative', answered issue No.4 as 'negative'. No doubt, in the suit in O.S.No.58/1999, the plaintiffs are not the parties, but their father i.e. defendant 17 No.2 was party to the proceedings and it is also not in dispute that the same was compromised among the father and sons and father of the plaintiff Nos.1 and 2 entered into a compromise through his power of attorney and the same has not been questioned by the father of the plaintiffs.
19. It is pertinent to note that a suit is filed by the plaintiffs in O.S.No.198/1998. The very same suit schedule property is also the subject matter of the suit in O.S.No.58/1999. It is also important to note that, in the suit in O.S.No.198/1998, there was a decree in respect of Sy.No.172/2, which is the subject matter of the suit in question and it is not in dispute that there was a decree in respect of the very same schedule property. It is also not in dispute that final decree proceedings are also initiated by the plaintiffs herein, no doubt, the same is not enforced. But, there was a preliminary decree in favour of the plaintiffs in O.S.No.198/1998.
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20. The Trial Court has taken note of these factors into consideration while answering issue No.4 i.e., no opportunity is given to the plaintiffs and when the father was alive, his share is protected in O.S.No.58/1999 by entering into a compromise and in the said compromise suit also, the father has got a share and all of them in the compromise decree have got 1/7th share which is also clearly demarcated in the decree in O.S.No.58/1999. When such being the case, no prejudice would be caused to the plaintiffs, since all of them divided their share equally.
21. I have already pointed out that in the suit in O.S.No.198/1998, the plaintiffs have already included the said property as one of the suit schedule property and decree is also passed. Hence, the Trial Court, while answering issue No.6 as 'affirmative', has rightly come to the conclusion that there is a bar contemplated under Order 23, Rule 3A of C.P.C. It is also observed by the Trial Court that the suit is also hit by the provisions of Order 2, Rule 2 19 of C.P.C. In the said suit in O.S.No.1/2003, other properties were not included and only questioned the judgment and decree passed in O.S.No.58/1999 and hence, the Trial Court rightly answered issue No.8 as 'partly affirmative' in coming to the conclusion that the suit is hit by resjudicata and clearly observed in the judgment while answering issue No.8 that in respect of a decree passed in O.S.No.58/1999, no resjudicata applies and also there was no dispute that, earlier, there was a partition between the father and children in the year 1974 and the document was also registered to that effect and subsequent suit is filed in respect of the property which was left out in the earlier partition of the year 1974. Hence, it cannot be contended that the same was a collusive suit filed in order to defeat the rights of the plaintiffs.
22. I have already pointed out that, in the suit in O.S.No.58/1999, though it was filed subsequent to the filing 20 of the suit in O.S.No.219/1998, share was given to the father of the plaintiffs in the left out properties.
23. It is also important to note that the Trial Court, in the judgment also observed that there was an admission on the part of the plaintiffs i.e., P.W.1 in the cross- examination that in the suit in O.S.No.58/1999, after 1974 partition, they have obtained the decree and it is also admitted that after the said decree, in terms of the said decree, his father, grand father and others were cultivating the said land. He also categorically admits that, in respect of the said share of his father, already filed the suit in O.S.No.219/1998 and sought for the relief of partition against the father in respect of the said property. When such admission is given by P.W.1 in the cross-examination and the same is also taken note by the Trial Court, I do not find any error committed by the Trial Court in dismissing the suit and the Trial Court has considered the material available on record in proper perspective. Hence, I do not 21 find any force in the contention of the learned counsel for the appellants that the Trial Court has committed an error in dismissing the suit. Accordingly, I answer point (i) as 'negative'.
Point No.(ii)
24. Having heard the learned counsel for the appellants and the learned counsel for the respondents and also on perusal of the grounds, it is the contention of the learned counsel for the appellants that the document of partition deed could not be produced before the Trial Court since, they were not aware of the said registered partition deed. But, in the plaint itself, it is stated that there was a partition among the members of the family and there is no dispute with regard to the fact that there was a partition among defendant No.2, who is the father of plaintiff Nos.1 and 2, husband of plaintiff No.3, father and other brothers. When there is no dispute with regard to the said fact and 22 there is no germane issues between the parties to consider the same by permitting the appellants to produce the document of partition deed. Further, it is emerged in the evidence that the partition was effected in the year 1974 and the document was also registered. Hence, permitting the appellants to produce the said document as additional evidence will not change the relief, since there is no dispute with regard to the partition effected among the members of the joint family. Hence, I do not find any grounds to allow the application. Accordingly, I answer point No.(ii) as 'negative'.
Point No.(iii)
25. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal filed by the appellants/ plaintiffs is dismissed. Consequently, the 23 application filed under Order 41, Rule 27 read with Section 151 of C.P.C. seeking permission to produce additional evidence is also dismissed.
(ii) The Registry is directed to transmit the Trial Court Records, forthwith.
Sd/-
JUDGE ST