Karnataka High Court
Revanappa S/O Gonibasappa Chavan vs Smt.Neelavva W/O Irappa Chavan @ Jogi on 9 November, 2021
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
R.S.A.NO.100858 OF 2017
BETWEEN
1. REVANAPPA S/O GONIBASAPPA CHAVAN
AGE: 59 YEARS,
OCC: AGRICULTURE,
R/O: TILAVALLI, TQ: HANGAL,
DIST: HAVERI-581120.
2. SURESH
S/O GONIBASAPPA CHAVAN,
AGE: 54 YEARS,
OCC: AGRICULTURE,
R/O: TILAVALLI, TQ: HANGAL,
DIST: HAVERI-581120.
3. RAVI S/O GONIBASAPPA CHAVAN,
AGE: 37 YEARS,
OCC: AGRICULTURE,
R/O: TILAVALLI, TQ: HANGAL,
DIST: HAVERI-581120.
4. RUDRAPPA S/O GONIBASAPPA CHAVAN,
AGE: 57 YEARS,
OCC: AGRICULTURE,
R/O: TILAVALLI, TQ: HANGAL,
DIST: HAVERI-581120.
...APPELLANTS
(BY SRI.AVINASH BANAKAR, ADV.,)
AND
1. SMT. NEELAVVA
W/O IRAPPA CHAVAN @ JOGI
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AGE: 58 YEARS,
OCC: HOUSEHOLD WORK,
R/O: SHIVAPPA NAYAK NAGAR P.T.,
TQ: SAGAR,
DIST: SHIVAMOGGA-577401.
2. G. RAMU S/O IRAPPA CHAVAN @ JOGI
AGE: 42 YEARS, OCC: COOLIE,
R/O: SHIVAPPA NAYAK NAGAR P.T.,
TQ: SAGAR, DIST: SHIVAMOGGA-577401.
3. KUMARI.JAYA D/O IRAPPA CHAVAN
AGE: 40 YEARS,
OCC: HOUSEHOLD WORK,
R/O: SHIVAPPA NAYAK NAGAR P.T.,
TQ: SAGAR, DIST: SHIVAMOGGA-577401.
4. KUMARI GIRIJA D/O IRAPPA CHAVAN
AGE: 29 YEARS,
OCC: HOUSEHOLD WORK,
R/O: SHIVAPPA NAYAK NAGAR P.T.,
TQ: SAGAR, DIST: SHIVAMOGGA-577401.
5. KUMARI SHASHIKALA D/O IRAPPA CHAVAN
AGE: 28 YEARS,
OCC: HOUSEHOLD WORK,
R/O: SHIVAPPA NAYAK NAGAR P.T.,
TQ: SAGAR, DIST: SHIVAMOGGA-577401.
6. SMT. RATNA @ ASHA W/O NAGESH TOGI
AGE: 37 YEARS,
OCC: HOUSEHOLD WORK,
R/O: ICHCHALBA, KHAILMAL
TQ: THEERTHAHALLI,
DIST: SHIVAMOGGA-577401.
7. RAMESH S/O SOMAPPA CHAVAN
AGE: 53 YEARS, OCC: COOLIE,
R/O: TALLIKERI, P.T.,
TQ: YALLAPUR,
DIST: KARWAR-581359.
8. NAGAPPA S/O SOMAPPA CHAVAN
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AGE: 50YEARS,
OCC: COOLIE AND AGRICULTURE,
R/O: TILAVALLI, TQ: HANGAL,
DIST: HAVERI-581120.
9. BASAMMA W/O BUDAPPA TOMBRI
AGE: 62 YEARS,
OCC: HOUSEHOLD WORK,
R/O: HOSUR, TQ: SAGAR,
DIST: SHIVAMOGGA-577401.
10. SAVANTRAMMA W/O BUDAPPA TOMBRI
AGE: 55YEARS,
OCC: HOUSEHOLD WORK,
R/O: HOSUR, TQ: SAGAR,
DIST: SHIVAMOGGA-577401.
11. KUSUMAVVA W/O KHANDAPPA TOMBRI
AGE: 35 YEARS,
OCC: HOUSEHOLD WORK,
R/O: SANVASAGI, TQ: HANGAL,
DIST: HAVERI-581120.
12. NAGAMMA W/O VENKARAO BHANDARI
AGE: 33 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KAMBADAL, HOSUR,
TQ: BHADRAVATHI,
DIST: SHIVAMOGGA-577301.
...RESPONDENTS
(BY SRI. DINESH M KULKARNI, ADV., FOR R7 - R8;
SRI. P. P. HITTALAMANI, ADV., AND
SRI. NINAD T KWATHIHALLI, ADV., FOR R9 TO R12;
R1 TO R6- NOTICE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF THE CODE OF
CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED
28.04.2017 PASSED IN R.A.NO.18/2013 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, HANGAL, PARTLY ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 16.08.2013
PASSED IN O.S.NO.67/2010 ON THE FILE OF THE CIVIL JUDGE AND
JMFC, HANGAL, DISMISSING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
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THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under section 100 of the Code of Civil Procedure is filed against the judgment and decree dated 28.04.2017 passed in R.A.No.18/2013 by the Senior Civil Judge and JMFC, Hangal reversing the judgment and decree dated 16.08.2013 passed in O.S.No.67/2010 by the Civil Judge and JMFC, Hangal.
2. The parties are referred to as per their ranks before the trial Court for the sake of convenience.
3. The plaintiffs are in appeal. The plaintiffs filed suit seeking partition and separate possession of their legitimate share in suit properties. In the plaint, it was contended that one Fakkeerappa Chavan, who was propositus of the family died leaving behind the plaintiffs and defendants as his legal heirs and they succeed to the properties left by deceased Fakkeerappa. Since defendants denied the right of the plaintiffs over the suit properties, the plaintiffs were constrained to file suit for partition.
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4. Defendants filed their written statement contending that the suit properties are the absolute properties of deceased Fakeerappa and all the properties belonging to the joint family are not included in the suit and hence, the suit for partial partition is not maintainable and accordingly, sought for dismissal of the suit.
5. The trial court on the basis of the pleadings of the parties framed issues and recorded the evidence of the parties and after examining the evidence on record, dismissed the suit of the plaintiffs on the ground that suit for partial partition is not maintainable. Taking exception to the same, plaintiffs filed regular appeal before the first appellate court.
6. Before the first appellate court, plaintiffs filed an application under Order XLI Rule 26 of CPC to include the properties, which were left out for effecting partition by metes and bounds. The said application came to be allowed by the first appellate court and thereafter, the first appellate court after re- appreciating the evidence on record, decreed the suit of the plaintiffs allotting half share in all the properties including the 6 property, which the plaintiffs claimed that it was the self- acquired property of the plaintiffs. The plaintiffs filed this appeal insofar as allotting half share to the defendants in respect of property bearing VPC No.288/3.
7. Learned counsel for the appellants submitted that the property bearing VPC No.288/3 is the self-acquired property of the plaintiffs, which is evident from the sale deeds marked at Ex.P8 and Ex.P9. Hence, the first appellate Court was not justified in allotting half share to the defendants in respect of the said property.
8. On the other hand, learned counsel for defendants submitted that the first appellate court noticing that there was no earlier partition has rightly held that the property bearing VPC No.288/3 is also joint family property of the plaintiffs and defendants and has rightly allotted half share to the defendants. Hence, sought for dismissal of the appeal.
9. I have considered the submissions of the learned counsel for parties.
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10. The case of the plaintiffs is that the property bearing VPC No.288/3 is the self-acquired property of the plaintiffs and it was not purchased out of the joint family corpus and that there was earlier partition with respect to some joint family properties and not with respect to the property bearing VPC Nos.280, 280/1 and 287. However, the plaintiffs have not placed any evidence to substantiate their claim to prove that there was earlier partition and that the property bearing VPC No.288/3 was purchased out of their own income and not out of joint family funds. The first appellate Court after considering the evidence on record in proper perspective, has rightly allotted half share to the defendants in respect of property bearing VPC No.288/3. In the absence of any evidence to establish that there was prior partition and that the property bearing VPC No.288/3 was purchased out of the own income of the plaintiffs and not out of joint family funds, the allotment of half share to the defendants in respect of VPC No.288/3 by the first appellate Court cannot be faulted with. I do not find any substantial question of law in this appeal. Accordingly, appeal stands dismissed. 8
11. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.
Sd/-
JUDGE yan