Karnataka High Court
Ranganath S/O. Narasinh Jamanis vs Ramachandra S/O. Rangarao Jamanis on 7 July, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RFA No. 3057 of 2011
C/W RSA No. 5926 of 2011
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 7TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO. 3057 OF 2011 (PAR)
C/W
REGULAR SECOND APPEAL NO. 5926 OF 2011
IN RFA NO.3057 OF 2011:
BETWEEN:
1. SHRI RANGANATH S/O. NARASINH JAMANIS,
AGE: 67 YEARS, OCC: SERVICE,
R/O: PATIL GALLI, GAYATRI NAGAR,
II CROSS, P.B. KHASBAG,
TQ AND DIST: BELAGAVI.
2. SHRI RAGHAVENDRA @ RAGHUNATH
S/O. NARASINH JAMANIS,
AGE: 65 YEARS, OCC: AGRICULTURE,
Digitally signed by R/O: KATTI GALLI, M.K. HUBLI,
MALLIKARJUN
RUDRAYYA KALMATH TQ: BAILHONGAL, DIST: BELAGAVI.
Location: HIGH COURT ... APPELLANTS
OF KARNATAKA
DHARWAD BENCH (BY SRI. SANTOSH B. RAWOOT, ADVOCATE)
AND:
1. SHRI RAMACHANDRA S/O. RANGARAO JAMANIS,
SINCE DECEASED BY LR'S.,
(NOTE: LEGAL REPRESENTATIVE OF RESPONDENT
NO.1 ARE ALREADY ON RECORD AS RESPONDENT
NO.2 TO 5)
2. SHRI ANAND RAMACHANDRA JAMANIS,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: M.K. HUBLI, TQ: BAILHONGAL,
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DIST: BELAGAVI.
3. SHRI SRIDHAR RAMACHANDRA JAMANIS,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: M.K. HUBLI, TQ: BAILHONGAL,
DIST: BELAGAVI, NOW AT BASARKOD,
TQ: BAILHONGAL, DIST: BELAGAVI.
4. SHRI ASHOK RAMACHANDRA JAMANIS,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O: M.K. HUBLI, TQ: BAILHONGAL,
DIST: BELAGAVI, NOW AT BASARKOD,
TQ: BAILHONGAL, DIST: BELAGAVI.
5. SHRI VILAS RAMACHANDRA JAMANIS,
AGE: 57 YEARS, OCC: SERVICE,
R/O: MOKASHI BUNGALOW, 1ST CROSS,
SAPTAPUR, DHARWAD.
6. SHRI SURESH @ VIJAY KRISHNAJI PAGAD,
SINCE DECEASED BY LR'S.,
6A. SMT. SULABA W/O SURESH PAGAD,
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O: GURUWAR PETH, KITTUR,
TQ: BAILHONGAL, DIST: BELAGAVI.
6B. SHRI SUNIL S/O SURESH PAGAD,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: GURUWAR PETH, KITTUR,
TQ: BAILHONGAL, DIST: BELAGAVI.
6C. SHRI PAVANKUMAR S/O SURESH PAGAD,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: GURUWAR PETH, KITTUR,
TQ: BAILHONGAL, DIST: BELAGAVI.
6D. SMT. VEENA D/O SURESH PAGAD,
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O: GURUWAR PETH, KITTUR,
TQ: BAILHONGAL, DIST: BELAGAVI.
7. SHRI RAJENDRAKUMAR S/O. KRISHNAJI PAGAD,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: GURUWAR PETH, KITTUR,
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TQ: BAILHONGAL, DIST: BELAGAVI.
... RESPONDENTS
(BY SRI. S.G. NANDOOR, ADVOCATE FOR R3, R2 AND R5
V/O/D 08/12/2023;
R2 TO R5 ARE LR'S. OF DECEASED R1;
R6(A-D) AND R7-SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED: 05.03.2011
PASSED IN O.S. NO.37/2005 ON THE FILE OF THE SENIOR CIVIL
JUDGE, BAILHONGAL AT BAILHONGAL.
IN RSA NO. 5926 OF 2011:
BETWEEN:
ANANT RAMACHANDRA JAMANIS,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: M.K. HUBLI, TQ: BAILHONGAL.
... APPELLANT
(BY SRI. S.K. KAYAKAMATH, ADVOCATE)
AND:
1. RAGHAVENDRA @ RAGHUNATH
S/O. NARSIMHA JAMANIS,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: M.K. HUBLI, TQ: BAILHONGAL.
2. RANGANATH S/O NARSIMHA JAMANIS,
AGE: 54 YEARS, OCC: TRAFFIC POLICE,
R/O: PATIL GALLI, GAYATRI NAGAR,
2ND CROSS, P.B. ROAD, KHASBAG,
BELAGAVI.
3. RAMACHANDRA S/O. RANGO JAMANIS,
SINCE DECEASED BY HIS LR'S.,
3A. SMT. SEETABAI RAMACHANDRA JAMANIS
AGE: 88 YEARS, R/O: MUKTAMATH COMPOUND,
1ST CROSS, SAPTAPUR, DHARWAD.
3B. SMT. REVATI W/O BALARAM KULKARNI,
AGE: 69 YEARS, R/O: MUKTAMATH COMPOUND,
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1ST CROSS, SAPTAPUR, DHARWAD.
3C. SMT. ANITA @ KALAVATI
W/O ASHOK NADAGOUDA,
AGE: 67 YEARS,
R/O: WALVEKAR COMPOUND,
NEAR UTTARADHI MATH, ACHAR GALLI,
BELAGAVI.
3D. SMT. ANITA @ SARALA W/O ASHOK DESAI,
AGE: 59 YEARS, R/O: SHRUTI NAGAR,
GOKUL ROAD, TARIHAL, HUBBALLI.
4. SRI. SRIDHAR S/O. RAMACHANDRA JAMANIS,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: BASARKOD, BAILHONGAL.
5. SRI. ASHOK S/O. RAMACHANDRA JAMANIS,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: BASARKOD, BAILHONGAL.
6. SRI. VILAS S/O RAMACHANDRA JAMANIS,
AGE: 42 YEARS, OCC: AGRICULTURE,
NOW AT R/O: BASARKOD, BAILHONGAL.
... RESPONDENTS
(BY SRI. SANTOSH B. RAWOOT, ADVOCATE FOR R1 AND R2;
SRI. M.M. HIREMATH, ADVOCATE FOR R6;
R3(A), R3(C), R3(D) AND R5-SERVED;
R3(B) AND R4-HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 R/W ORDER 41 RULE
1 OF C.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED: 18.07.2009 PASSED IN O.S. NO.79/2004 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE (JR.DN.), BAILHONGAL AND ALSO SET
ASIDE THE JUDGMENT AND DECREE DATED 27.07.2011 PASSED IN
R.A. N0.25/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT, BAILHONGAL.
THIS RFA AND RSA ARE COMING ON FOR FURTHER
ARGUMENTS THIS DAY, JUDGMENT IS DELIVERED THEREIN AS
UNDER:
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ORAL COMMON JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)
By virtue of the order passed by the Hon'ble the Chief
Justice, RSA No.5926/2011 is tagged with RFA
No.3057/2011 and ordered that both these appeals shall
be heard by the learned Single Bench having roster of
RFA. Therefore, the above said RSA No.5926/2011 is
tagged with RFA No.3057/2011. Hence, both the appeals
are taken up together for common judgment.
2. RFA No.3057/2011 is filed by the
appellants/plaintiffs challenging the judgment and decree
passed in O.S.No.37/2005 dated 05.03.2011 on the file of
Senior Civil Judge, Bailhongal (for short, 'Trial Court'),
thereby, the suit filed for partition and separate possession
is dismissed.
3. RSA No.5926/2011 is filed by the
appellant/plaintiff challenging the judgment and decree
dated 18.07.2009 passed in O.S.No.79/2004 on the file of
Principal Civil Judge (Jr.Dn), Bailhongal (for short, 'Trial
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Court'), which is confirmed by the judgment and decree
dated 27.07.2011 passed in R.A.No.25/2009 on the file of
the Presiding Officer, Fast Track Court, Bailhongal (for
short, 'First Appellate Court').
4. In RFA No.3057/2011, the suit is filed for
partition and separate possession of Schedule-B,
Schedule-C and Schedule-D properties, which are as
follows:
Schedule-B
Area Assessment
Sl.No. Village R.S.No.
As.Gs. Rs. Ps.
1. Basarkod 05 0-13 1-38
2. Basarkod 6/02 0-26 01-49
3. Basarkod 6/4 6-23 12-37
4. Basarkod 82/1 1-23 03-60
5. Basarkod 94/A2 1-25 10-44
6. Basarkod 9A/B2 1-26 03-18
7. Basarkod 95/1 9-20 46-45
8. Basarkod 95/2B 1-20 01-03
9. Basarkod 96/3B/2 0-35 02-35
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Schedule-C
Residential house with backyard bearing G.P.No.943
situated in Chavadi Oni, Guruwar Peth, Kittur village.
Schedule-D
Property bearing G.P.No.684 situated ad Basarkod village.
5. In RSA No.5926/2011, the suit is filed for
partition and separate possession of the schedule
properties, which are as follows:
Extent Assessment
Sl.No. Sy.No.
A-G4 Rs.-Ps.
1. 547/1C 4-15 12-48
2. 547/3 1-31 4-82
3. 547/5 0-10 0-68
4. 548/2A 1-10 3-20
6. Both the suits have been filed between the
same family members and genealogies in both the suits
are common and the said genealogies are not in dispute.
The plaintiffs in O.S.No.37/2005 have shown the
genealogy as follows:
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RAMACHANDRA RANGARAO JAMANIS (Propositus)
Krishnaji Rangarao Narayan
Died issueless =Radhabai =Laxmibai
On 19-07-1941 (died on 27-11-87)
Ramachandra Jeevaji Narasinhrao Venkatesh
(D1) @ Laxmanrao (died 3-6-96) (went in adoption
(died on 6-10-94) to krishnaji
s/o Ramachandra
=Kamalabai
(died on 10-10-91) =Vimalabai
=Sitabai (died on 16-7-96)
Anant Shreedhar Ashok Vilas Rangnath Raghavendra
(D2) (D3) (D4) (D5) (Plft-1) @ Raghunath
(Plft-2)
7. The plaintiffs in O.S.No.37/2005 have stated
that all the properties are ancestral properties. Hence,
they have right of claiming share in the properties,
therefore field the suit for partition and separate
possession. The defendants in O.S.No.37/2005 have
appeared through their advocate and filed written
statement denying the case of the plaintiffs that there was
already partition in the year 1985 by taking a specific plea
at paragraph No.7 of the written statement.
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8. In O.S.No.37/2005, based on the pleadings of
the parties, the Trial Court has framed the following
Issues:
1. "Whether the plaintiffs prove that the
Laxmanrao @ Jivaji S/o Rangarao has relinquished his
share in favour of plaintiff No.2 with the knowledge of
defendant No.1?
2. Whether the plaintiffs prove that themselves
and the defendant No.1 to 5 are jointly possessing the
suit properties?
3. Whether the defendant No.1 to 5 prove that
under Gift deed dated 27/11/1987, 25/10/1969 and
compromise between Narayan Laxmibai, defendant
No.1, defendant No.1 acquired ownership over
Sy.No.547/4 of M.K.Hubli village and Sl.No.1, 2 and 4
to 9 of Schedule-B properties?
4. Whether the defendant No.2 proves the
partition of the year 1985 pleaded in para No.7 of W.S.
and partition of 1998 as pleaded in para No.9 of W.S.?
5. Whether defendants prove the partition of the
year 1941 between Venkatesh A/F Krishnaji, Rangarao
and Narayan pleaded in the W.S?
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6. Whether defendant No.6 and 7 prove that
Schedule-C was the purchased property of Narayan?
7. Whether defendant No.6 and 7 proves that
under Gift deed executed by defendant No.1 and
Narayan, Smt.Laxmibai acquired ownership over
schedule-C property Sy.No.6/4 of Basarkod village?
8. Whether defendant No.6 & 7 prove that
Laxmibai bequeathed schedule-C property Sy.No.5,
6/2, 6/4 of Kittur to them and Sy.No.96/3B/2 to Vithal
Devasthan under Will dated 16/07/1992?
9. Whether this suit is an off suit of O.S.No.79/04
on the file of Civil Judge (Jr.Dn) Bailhongal?
10. Whether plaintiffs are entitle for the relief
claimed in para 19 of the plaint?
11. Whether plaintiffs are having ½ of share in the
suit properties?
12. Whether plaintiffs proves that suit is well
within time?
13. Whether suit filed by the plaintiffs is bad for
non joinder of necessary parties?
14. Whether the defendant No.6 & 7 prove that the
plaintiffs have not paid the proper court fee?
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15. Whether the plaintiffs prove that the suit filed
by them is maintainable without cancellation of gift
deed?
16. What order of decree?"
9. The Trial Court has dismissed O.S.No.37/2005
by holding that there was partition in the year 1941 and
the properties allotted to Laxmanrao @ Jivaji are not
included. Insofar as partition effected in the year 1985,
whatever properties were allotted to Laxmanrao @ Jivaji,
were got mutated in the name of plaintiff Nos.1 and 2 and
plaintiff Nos.1 and 2 have not included the said properties.
Therefore, the Trial Court has dismissed the suit, as the
suit for partition is not maintainable.
10. In O.S.No.79/2004, the plaintiff, who is the son
of Ramachandra Jamanis, has pleaded that Ranganath and
Raghavendra have illegally got mutated the schedule
properties of Laxmanrao @ Jivaji. But as per Clause-II
legal heirs, the plaintiff and the children of Ramachandra
are equally entitled to share as per Clause-II legal heirs of
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the Hindu Succession Act, 1956 (for short, 'the Act,
1956'). But the Trial Court dismissed the suit, which is
confirmed by the First Appellate Court. Therefore, the
plaintiff in RSA No.5926/2011 has preferred the present
regular second appeal.
11. In O.S.No.79/2004, the Trial Court has framed
the following issues:
1. Whether the plaintiff proves that he is the
member of the joint family of the plaintiff and
defendants?
2. Whether plaintiff further proves that he has
1/10th share in the suit schedule properties?
3. Whether the defendant Nos.1 and 2 proves
that the suit is bad for non-inclusion of the joint family
properties of the plaintiff?
4. Whether the defendant Nos.1 and 2 proves
that suit is bad for non-joinder of the necessary
parties?
5. Whether the Court fee paid on the plaint is
correct one?
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6. Whether the defendant Nos.1 and 2 prove that
Laxman who is the brother of the father of the plaintiff
has executed a relinquished deed in favour of the
defendant Nos.1 and 2 in respect of the suit
properties?
7. To what reliefs the parties are entitled?
8. What order or decree?"
12. The Trial Court has dismissed O.S.No.79/2004,
which is confirmed by the First Appellate Court in
R.A.No.25/2009. Therefore, these two appeals i.e., RFA
No.3057/2011 and RSA No.5926/2011 are arising out of
the impugned judgment and decrees respectively.
13. The learned counsel for the appellants/plaintiffs
in RFA No.3057/2011 submitted that there was no
partition in the year 1941 and Rangarao and Narayanrao
were not allotted to any share in the schedule properties.
Further also, there is no partition proved in the year 1985
and this is correctly held by the Trial Court, but wrongly
dismissed the suit without being partition. Therefore
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submitted that though the Trial Court is justified in
answering Issue No.4 in O.S.No.37/2005 that the
defendants failed to prove that there was partition in the
year 1985, but the Trial Court ought to have granted
decree for partition, but not granted. Therefore, prays to
allow regular first appeal.
14. The learned counsel for the appellants in RSA
No.5926/2011 submitted that these appellants have been
inherited the properties given to Laxmanrao @ Jivaji
legitimately and considering this, the Trial Court and the
First Appellate Court have dismissed the suit, which needs
to be confirmed. Therefore, prays to dismiss the appeal.
15. On the other hand, the learned counsel for the
respondents/defendants in RFA No.3057/2011 and learned
counsel for the respondents in RSA No.5926/2011
submitted that there was partition in the year 1985
between Ramachandra, Laxmanrao @ Jivaji and
Narasinhrao, which is correctly held in O.S.No.79/2004.
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Therefore, the judgment and decree passed in
O.S.No.37/2005 need not be interfered with. Further
submitted that the plaintiffs have filed suit in
O.S.No.37/2005, is nothing but offshoot to the suit filed in
O.S.No.79/2004. Therefore, O.S.No.37/2005 is filed with
malafide intention. Further submitted that Laxmanrao @
Jivaji died issueless. Therefore, whatever properties given
to his share, as per 1985 partition, will be inherited to the
plaintiffs and defendant Nos.1 to 5 as per Clause-II legal
heir of the Act, 1956. Therefore, prays to allow the regular
first appeal.
16. The learned counsel Sri.S.K. Kayakmath
appearing for the appellants in RSA No.5926/2011
submitted that Ranganath and Raghavendra have illegally
mutated their names in respect of the properties allotted
to Laxmanrao @ Jivaji. Therefore, Anant has filed the suit
for partition on the properties allotted to the share of
Lakshmanrao. The Trial Court without considering the fact
that Anant is also one of the Class-II legal heirs and is
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entitled to share, has dismissed the suit. Therefore, prays
to allow the regular second appeal.
In RFA No.3057/2011:
17. Having heard arguments and on perusal of
records, the following points that arise for consideration is:
i) Whether, under the facts and circumstances
involved in the case, defendant Nos.1 to 5 in
O.S.No.37/2005, who are plaintiff and defendants
No.3 to 6 in O.S.No.79/2004 prove the fact that
there was partition in the year 1985 between
Ramachandra (defendant No.1 in O.S.No.37/2005),
Jivaji @ Lakshmanrao and Narasinhrao?
ii) Whether the judgment and decree passed in
O.S.No.37/2005 dated 05.03.2011 on the file of
Senior Civil Judge, Bailhongal, requires any
interference of this Court?
iii) Whether the judgment and decree passed in
O.S.No.79/2004 dated 18.07.2009 on the file of
Principal Civil Judge (Jr.Dn), Bailhongal and
R.A.No.25/2009 dated 27.07.2011 on the file of
Presiding Officer Fast Track Court, Bailhongal,
requires any interference of this Court?
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In RSA No.5926/2011:
18. Having heard arguments and on perusal of
records, the following points that arise for consideration is:
i) Whether, under the facts and circumstances
involved in the case, defendant Nos.1 to 5 in
O.S.No.37/2005, who are plaintiff and defendants
No.3 to 6 in O.S.No.79/2004 prove the fact that
there was partition in the year 1985 between
Ramachandra (defendant No.1 in
O.S.No.37/2005), Jivaji @ Lakshmanrao and
Narasinhrao?
ii) Whether the judgment and decree passed in
O.S.No.79/2004 dated 18.07.2009 on the file of
Principal Civil Judge (Jr.Dn), Bailhongal and
R.A.No.25/2009 dated 27.07.2011 on the file of
Presiding Officer Fast Track Court, Bailhongal,
requires any interference of this Court?
19. These two appeals are considered in the
background of pleadings, schedule properties and
genealogies as described above. The fact that the
genealogies produced by the plaintiffs in both suits are not
disputed by the defendants in their respective suits and
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also, the nature of properties, which are ancestral
properties, are also not in dispute.
20. It is contention of the counsel for the
appellants/plaintiffs in O.S.No.37/2005 (defendants No.1
and 2 in O.S.No.79/2004) that there were no prior
partitions and the properties are ancestral properties.
21. On the other hand, it is contention of the
counsel for the defendants No.1 to 5 in O.S.No.37/2005
who are plaintiffs and defendants No.3 to 6 in
O.S.No.79/2004 that, there was partition in the year 1941
and in the year 1985. Therefore, the suit properties are
not ancestral properties. Further, it is case made out in
O.S.No.79/2004 by the plaintiff in that suit that the suit
schedule properties in that suit were earlier belonging to
Laxmanrao @ Jivaji who died issueless. Therefore, the
children of Ramachandra and Narasinhrao are entitled to
equal share of 1/6th as per Class-II legal heir according to
Hindu Succession Act, 1956.
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22. The trial Court has framed issue, as issue No.5
in O.S.No.37/2005 that whether there was partition in the
year 1941, between Venkatesh adopted father of
Krishnaji, Rangarao and Narayan as pleaded in the written
statement. The trial Court has answered this issue No.5
holding that the partition took place in the year 1985 is
proved. Ex.D2 is the mutation entry No.286 of Basarkod
village, according to which, there was oral partition
between Venkatesh, adopted father of Krishnaji, Rangarao
and Narayan and that is reduced into writing and
accordingly, varadi(report) was given to the revenue
authorities that there was partition in the family.
Accordingly, these three persons have received their
respective shares and according to it, acted upon. Exs.D8
and D9 are the gift deeds dated 27.03.1973 that the said
Narayan had gifted the properties which were fallen to his
share to Ramachandra who is son of Rangarao. Therefore,
the partition of the year 1971 was acted upon. The trial
Court has correctly held this issue as the partition in the
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year 1941 is proved. Hence, the findings given in issue
No.5 is found to be correct and justified as per the
evidence on record.
23. The principal contention of the plaintiffs in
O.S.No.37/2005 that there was no partition in the year
1985, the defendants in O.S.No.37/2005 at paragraph
No.7 have taken pleading that there was partition in the
year 1985 but documentary evidence is not produced
before the trial Court. Therefore, the trial Court held while
answering issue No.5 that, the partition in the year 1985 is
not proved whereas, in the suit O.S.No.79/2004, the very
same issue involved regarding proving the partition of the
year 1985 in O.S.No.79/2004 and the trial Court held that
the partition in the year 1985 was proved in
O.S.No.79/2004. Thereafter, the document regarding
partition took place in the year 1985 is produced as per
Ex.P6, M.E.No.10186. In O.S.No.79/2004, the plaintiffs in
O.S.No.37/2005 were defendant No.1 and defendant No.2
and have filed their written statement by specifically
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taking contention that there was partition in the year
1985. Therefore, the plaintiffs in O.S.No.37/2005 have
taken contra stand as that of pleading taken in
O.S.No.79/2004. The counsel for the appellants in Regular
First Appeal (plaintiffs in O.S.No.37/2005) has produced
memo along with certified copy of M.E No.10186 and the
Court by exercising its power under Order 41 Rule 27 of
CPC, this document is treated as an additional evidence as
it is relevant to decide the lis between the parties for
pronouncing the judgment on substantial cause.
Therefore, the document-M.E.No.10186 is received and
considered as additional evidence in the appeal in RFA
No.3057/2011 as per Order 41 Rule 27 of CPC.
24. According to this documentary evidence,
M.E.No.10186 and the same is produced in
O.S.No.79/2004 as per Ex.P6 that there was oral partition
in the year 1985 and the same is reduced into writing,
accordingly a varadi (report) was given to the revenue
authorities. Accordingly, the partition was entered in the
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C/W RSA No. 5926 of 2011
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M.E. No.10186 dated 28.11.1985. As per this
M.E.No.10186, the following lands were partitioned
between Ramachandra, Laxmanrao and Narasinhrao.
C¥À¸ÁvÀ ªÁnß:- vÁjÃR: 28-11-85
1. gÁªÀÄZÀAzÀæ gÀAUÉÆà d«Ä¤Ã¸À 2. ®PÀt
ë gÁªï G¥sð
À fêÁf gÀAUÉÆà d«Ä¤Ã¸À
3. £Àg²
À AºÀgÁªï gÀAUÉÆà d«Ä¤Ã¸À »ÃUÉ CtÚ vÀªÀÄäA¢gÀÄ C¥À¸ÁvÀ ªÁnß ªÀiÁrPÉÆArzÀÝ ªÁnß
ªÀiÁrPÉÆAqÀ d«ÄãÀÄUÀ¼À «ªÀg.À
j¸À £ÀA. PÉÃë vÀæ DPÁgÀ PÀ§eÉÃzÁgÀgÀ ºÉ¸g
À ÀÄ
548/2§ 1=15 3=29 ²æÃ. gÁªÀÄZÀAzÀæ gÀAUÉÆÃ
547/1§ 2=20 5=00 d«Ä¤Ã¸À EªÀgÀ »¸Áì CPÉÌ
547/4 2=00 5=42 §AzÀzÀÄÝ
5=35 13=74
548/2C 1=10 3=20 ²æÃ. ®PÀt
ë gÁªï G¥sð
À fêÁf
547/3 1=31 4=82 gÀAUÉÆà d«Ä¤Ã¸À EªÀgÀ »¸Áì
547/5 0=10 0=68 CPÉÌ §AzÀzÀÄÝ
547/1PÀ 4=15 12=48
7=26 21=18
549 2=17 4=41 ²æÃ. £Àg²
À AºÀgÁªï gÀAUÉÆÃ
547/1qÀ 4=20 12=50 d«Ä¤Ã¸À EªÀgÀ »¸Áì CPÉÌ
547/1C 1=02 3=70 §AzÀzÀÄÝ
7=39 20=61
F ¥ÀPæ ÁgÀ vÀªÉÆä¼U
À É »jAiÀÄgÀ ¸ÀªÀÄPÀª
ë ÀÄ ªÁnß ªÀiÁrPÉÆAqÀÄ D ¥ÀPæ ÁgÀ zÁR®
ªÀiÁqÀ®Ä eÁ¬ÄAl ªÀ¢ð ªÀÄvÀÄÛ ªÁnß ¥ÀvÀæ PÀ½¹zÀ ¥ÀPæ ÁgÀ zÁR®.
25. Upon appreciating the documentary evidence-
Ex.P6 and additional documentary evidence M.E.
No.10186, it is proved that Ramachandra, Laxmanrao and
Narasinhrao were given their respective shares as above
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described. Since, this documentary evidence is not
produced in O.S.No.37/2005, therefore, the trial Court
held that the partition of the year 1985 is not proved. But
with this, the very same document is produced in the suit
in O.S.No.79/2004. Therefore, in O.S.No.79/2004, it is
held affirmative that the partition of the year 1985 is
proved. Therefore, upon appreciating the evidence on
record, it is proved that there was prior partition in the
year 1985 between Ramachandra, Laxmanrao and
Narasinhrao.
26. Further, upon considering the suit schedule
properties concerned, the plaintiffs in O.S.No.37/20005
have not included the properties in the suit which have
been fallen to the share of Laxmanrao. As per plaintiffs
case, the lands which were allotted to Laxmanrao, these
plaintiffs have got mutation entries in the revenue records
pertaining to the properties which were given to share of
Laxmanrao on the very same day, on the death of
Laxmanrao dated 06.10.1994. On the very same day,
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C/W RSA No. 5926 of 2011
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these plaintiffs have got mutated their names in the said
properties which were given to the share of Laxmanrao.
But these properties are not included in the suit for
partition, only the properties which were given to the
share of Ramachandra and Laxmanrao are included for
partition. Therefore, in this regard, there is no merit found
in O.S.No.37/2005 so as to pass decree for partition and
the trial Court has rightly dismissed the suit.
27. Learned counsel for the appellant relied on
judgment of this Court, during the course of hearing, in
the case of Niroop D.J. V/s D.A. Jayarame Gowda and
Others1, has argued that suit for partial partition is not
maintainable. The facts and circumstances in the above
cited case and in the present case are different. Therefore,
this citation is not applicable in the present case. It is
more so, applicable that the plaintiffs in O.S.No.37/2005
have not included the properties shared to Laxmanrao in
the suit. Therefore, this very citation is applicable to
1
HCR 2024 Kant. 21
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answer the contention taken by appellants/plaintiffs in
O.S.No.37/2005.
28. Insofar as the suit schedule properties are
concerned in O.S.No.79/2004, these properties are shares
given to Laxmanrao in the partition took place in the year
1985 as per Ex.P6 and additional documentary evidence as
above discussed. Admittedly, the schedule properties in
O.S.No.79/2004 were fallen to the share of Laxmanrao as
per partition took place in the year 1985 and Laxmanrao
died issueless. Therefore, these properties were to be
inherited to the legal heirs of Ramachandra and
Narasinhrao as Class-II legal heir of Schedule No.I of
Hindu Succession Act. Since, defendant No.1 in
O.S.No.37/2005 died during the pendency of the appeal,
therefore, defendants No.2 to 5 and plaintiffs No.1 and 2
in O.S.No.37/2005 are entitled to equally 1/6th share each
in the schedule properties in O.S.No.79/2004. Therefore,
in O.S.No.79/2004 in R.A.No.25/2009 both trial Court and
First Appellate Court have committed error in appreciating
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these evidence on record as discussed above. Therefore,
the RSA No.5926/2011 is liable to be allowed in part.
29. Accordingly, in RFA No.3057/2011, I answer
points No.(i) and (iii) in the "affirmative" and point No.(ii)
in the "negative", and in RSA No.5926/2011, I answer
points No.(i) and (ii) in the "affirmative", the substantial
question of law is answered that there was partition in the
year 1985.
30. Hence, I proceed to pass the following:
ORDER
i. RFA No.3057/2011 is dismissed.
ii. The judgment and decree passed in O.S.No.37/2005 dated 05.03.2011 on the file of Senior Civil Judge, Bailhongal, is hereby confirmed.
iii. RSA No.5926/2011 is allowed in part.
iv. The judgment and decree dated 18.07.2009 passed in O.S.No.79/2004 on the file of Principal Civil Judge (Jr.Dn),
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v. Draw decree accordingly.
vi. No order as to costs.
Sd/-
(HANCHATE SANJEEVKUMAR) JUDGE PMP-para 1 to 18 RKM-para 19 to end CT:BCK List No.: 1 Sl No.: 27