Karnataka High Court
Smt Basavannevva W/O. Devendrappa ... vs Prakash Mother Renuka Kagammanavar on 1 March, 2024
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NC: 2024:KHC-D:4838
RSA No. 5940 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 5940 OF 2011 (DEC)
BETWEEN
1. SMT BASAVANNEVVA
W/O. DEVENDRAPPA KENCHALLANAVAR
AGED ABOUT 53 YEARS,
OCC: AGRICULTURE
2. SMT. GANGAVVA
W/O. DYAMANNA VADAKAMMANAVAR
AGED ABOUT 35 YEARS,
OCC: HOUSEWIFE,
APPELLANTS NO.1 & 2 ARE
R/O. HATTIMATTUR,TQ: SAVANUR,
DIST: HAVERI 581118
3. SMT SHAKUNTALLA @ SHAKAVVA
W/O. SANGAPPA KATTIMANI,
Digitally signed
by BHARATHI AGED ABOUT 38 YEARS,
S OCC: HOUSEWIFE,
Location: HIGH
COURT OF R/O. HAVERI 581110
KARNATAKA
..APPELLANTS
(BY SRI N P VIVEKMEHTA, ADVOCATE)
AND
1 . PRAKASH
MOTHER RENUKA KAGAMMANAVAR,
AGED ABOUT 43 YEARS,
OCC. HOUSEHOLD WORK
2 . VIJAY
MOTHER RENUKA KAGAMMANAVAR,
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NC: 2024:KHC-D:4838
RSA No. 5940 of 2011
AGED ABOUT 25 YEARS,
OCC: COOLIE,
R/O. DVIHOSUR,
TQ AND DIST: HAVERI 581110
3 . DILLEPPA
S/O. HANUMAPPA ANNI,
AGED ABOUT 38 YEARS,
OCC: COOLIE,
R/O. KARAJAGI,TQ AND
DIST: HAVERI 581118
...RESPONDENTS
(BY SRI MAHANTAGOUDA, ADVOCATE FOR R2 & R3
V/O DATED 8.4.2015 BRINGINGLR'S OF DECEASED R1 IS
EXCEMPTED)
THIS RSA IS FILED U/SEC.100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 05-07-2011 PASSED IN R.A.NO.19/2009
ON THE FILE OF THE ADDL.SENIOR CIVIL JUDGE, HAVERI,
DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT DTD:19-
01-2009 AND THE DECREE PASSED IN O.S.NO.164/2008 ON THE
FILE OF THE CIVIL JUDGE(JR.DN.) HAVERI, DISMISSING THE SUIT
FILED FOR DECLARATION.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
JUDGMENT
The present second appeal is filed under Section 100 of the Code of Civil Procedure, 19081 by the Plaintiffs challenging the judgment and decree dated 5.7.2011 passed in RA No.19/2009 by the Additional Senior Civil Judge, Haveri2 and the judgment and decree dated 1 Hereinafter referred to as 'CPC' 2 Hereinafter referred to as the 'first appellate Court' -3- NC: 2024:KHC-D:4838 RSA No. 5940 of 2011 19.1.2009 passed in OS No.164/2008 by the Civil Judge (Jr.Dn.,) & JMFC, Haveri3 wherein, the suit filed by the Plaintiffs has been dismissed by the Trial Court which has been affirmed by the first appellate Court.
2. For the sake of convenience, the parties herein are referred as per their rank before the Trial Court.
3. It is the case of the Plaintiffs that Plaintiff No.1 is the wife of the Devendrappa Bharmappa Kenchallanavar4 and the Plaintiff Nos.2 and 3 are their daughters. Defendant No.1 is the second wife of deceased Devendrappa and Defendant Nos.2 and 3 are their sons. That Plaintiff Nos.1 to 3 and Defendant Nos.1 to 3 are the legal heirs of the deceased who died on 21.7.2004 and who served as a peon in the judicial department.
3.1 That in OS No.116/2006 it has been declared that the Plaintiffs and Defendants are the legal heirs of the deceased and the said decree has become final and conclusive. The first Plaintiff was receiving the pension 3 Hereinafter referred to as the 'Trial Court' 4 Hereinafter referred to as the 'deceased' -4- NC: 2024:KHC-D:4838 RSA No. 5940 of 2011 and other benefits of the deceased. That the deceased was the absolute owner of the property measuring 3 acres 24 guntas in RS No.374/6B+7A situated at Karjagi village, Haveri Taluk5 and that after the death of the deceased, the Plaintiffs have been cultivating the suit property and they are in possession of the same. That Defendant Nos.1 to 3 are living in Devihosur village of Haveri Taluk and the suit property is situated at a distance of about 20 kms., from Devihosur village. That Defendant No.4, at the instigation of Defendant Nos.1 to 3 is obstructing the cultivation of the suit property by the Plaintiffs.
3.2 That Defendant Nos.1 to 3 filed a suit in OS No.127/2004 for declaration and injunction against the Plaintiffs. That the suit of the Defendants was dismissed on 1.4.2006. That Defendant Nos.1 to 3 had earlier filed OS No.199/2003 for partition and separate possession against the deceased and one Laxmappa Bheemappa Banakar. That during the pendency of the said suit, the deceased died and without bringing the legal 5 Hereinafter referred to as the 'suit property' -5- NC: 2024:KHC-D:4838 RSA No. 5940 of 2011 representatives of the deceased on record, the said suit was compromised between the Plaintiffs and Defendant No.2. That the Plaintiffs herein who are the legal heirs of the deceased were not brought on record and hence the compromise recorded in OS No.199/2003 was not binding on the Plaintiffs.
3.3 That on the basis of decree passed in OS No.199/2003 the Defendant Nos.1 to 3 herein have got their name entered in the revenue records of the suit property illegally behind the back of the present Plaintiffs.
3.4 Hence, the present suit is filed for declaration of title and injunction to restrain the Defendants from interfering with the peaceful possession and enjoyment of the property by the Plaintiffs.
4. The Defendants were placed ex parte before the Trial Court. The Plaintiff No.1 examined herself as PW.1 and Exs.P1 to P9 were marked in evidence. The Trial Court by its judgment and decree dated 19.1.2009 dismissed the suit of the Plaintiffs. -6-
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5. Being aggrieved, the Plaintiffs preferred RA No.19/2009. The Defendants entered appearance before the first appellate Court through a counsel. The first appellate Court by its judgment and decree dated 5.7.2011 dismissed the appeal filed by the Plaintiffs. Being aggrieved, the present second appeal is filed.
6. This Court by its order dated 29.7.2020 has framed the following substantial questions of law:
"1) Whether the First Appellate Court was justified in affirming the dismissal of the suit notwithstanding the fact that the finding in O.S.No. 127/2004 filed by the present Plaintiffs was that they are the legal heirs of the deceased Devendrappa and finding in O.S.No. 116/2006 that the service benefits of Devendrappa was directed to be paid to the present Plaintiffs under the compromise decree on which the Trial Court relies?
2) Whether the Trial Court was justified in ignoring the fact that the decree in O.S.No.116/2006, which directed terminal benefits of Devendrappa to be paid to the present Plaintiffs?
3) Whether the Trial Court was justified in ignoring the fact that the compromise decree entered into between Devendrappa and the Defendants herein dated 11.07.2005 was after the death of Devendrappa on 21.07.2004 and the properties now in the name of the Defendants are on the strength of the said compromise decree? "-7-
NC: 2024:KHC-D:4838 RSA No. 5940 of 2011
7. Learned Counsel Sri Vivek Mehta appearing for the Appellants/Plaintiffs contended that the findings recorded by the Trial Court in O.S. No.127/2004 are in favour of the Plaintiffs herein and the said findings have become final. Further, it is contended that in O.S. No.199/2003 instituted by Defendant Nos.1 to 3, consequent to the death of Devendrappa who was arrayed as Defendant No.1, his legal representatives were not brought on record and Defendant Nos.1 to 3 who are the Plaintiffs in the said suit entered into a compromise with Defendant No.2 therein. Hence, the said compromise is not binding on the Plaintiffs. Hence, he submits that both the Courts have erred in dismissing the suit filed by the Plaintiffs and seeks for allowing of the above appeal and decreeing of the suit filed by the Plaintiffs.
8. The respondents who are the Defendants in the suit are served and un-represented. -8-
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9. The submissions of the learned counsel for the Appellants/Plaintiffs have been considered and the material on record including the records of the Trial Court and the first appellate Court have been perused. Before considering the contentions, it is necessary to notice the findings of the Trial Court and the first appellate Court.
10. The relief sought for by the Plaintiffs in the suit is as follows:
i) That the Plaintiffs No.1 to 3 be declared the absolute owner and in peaceful possession and enjoyment of the suit land.
ii) Consequently, issue Permanent Injunction restraining the Defendants permanently from interfering with the Plaintiffs' peaceful possession and enjoyment of the suit land.
iii) Any such other reliefs which the Hon'ble Court be deems fit be granted. A decree may kindly be passed accordingly.
11. The Trial Court framed the following points for consideration:
1. Whether the Plaintiffs entitled for the relief as claimed in the plaint?-9-
NC: 2024:KHC-D:4838 RSA No. 5940 of 2011
2. What order or decree?
12. While considering the said points, the Trial Court recorded the following points:
i) The crucial point is that Ex.P5 shows in O.S. No.116/2006, the Defendant Nos.1 to 3 are not parties to the suit. So when the Plaintiffs shows that the decree of O.S. No.199/2003 is not binding upon them because they are not party to the suit, the same principle applies to the decree obtained in O.S. No.116/2006 because this decree is also obtained without the knowledge of the Defendant Nos.1 to 3.
ii) In O.S. No.127/2004, the issue as to whether the Plaintiffs are the only legal heirs of deceased-Devendrappa has been answered in the Negative.
iii) Defendant Nos.1 to 3 entered their names in the suit property on the basis of the compromise decree. The said compromise decree was not challenged by the Plaintiffs. Without nullifying the
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NC: 2024:KHC-D:4838 RSA No. 5940 of 2011 said decree the Plaintiffs cannot seek any right over the suit property.
13. The first appellate Court while considering the appeal filed by the Plaintiffs framed the following points for consideration:
1. Whether Plaintiffs/appellants are entitled relief of declaration and perpetual injunction in respect of suit property.
2. Whether judgment and decree passed in O.S. No.164/2008 dated 19.1.2009 on the file of Prl.
Civil Judge, Haveri, is against the material available on records and require interference by this Court?
3. What order?
14. While considering the same, the first appellate Court recorded the following points:
i) In O.S. No.127/2004 at para No.15 of the judgment, it has been noticed that Devendrappa married the present Plaintiff No.1 prior to the marriage of present Defendant No.4 - Nagaratna but in the conclusive portion, it is observed that Plaintiff No.1 has not positively proved
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NC: 2024:KHC-D:4838 RSA No. 5940 of 2011 that she is the legally wedded wife of the deceased-Devendrappa.
ii) The present Plaintiff No.1 has failed to challenge the judgment and decree passed in O.S. No.127/2004. Hence, I am of the opinion that the same is final and conclusive one on its merits.
iii) The Plaintiffs have claimed that they are in actual possession of the suit property after the death of Devendrappa, but there is no clear averment made in the plaint whether Plaintiffs have succeeded the suit property as legal heirs of Devendrappa or the suit property is ancestral property of Devendrappa.
iv) The Plaintiffs have not averred in the plaint in respect of source of their title in respect of the suit property. Plaintiffs only claims possession and Plaintiffs got examined single witness but not examined any adjacent owner to prove the actual possession over the suit property on the date of suit.
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RSA No. 5940 of 2011
v) As per the findings given in O.S.
No.127/2004 in respect of status of
Plaintiff No.1 has not legally wedded wife, then children born out of void marriages are not entitled share in the ancestral property.
15. It is forthcoming that Plaintiff Nos.1 and 2 filed O.S.116/2006 wherein, Plaintiff No.3 was arrayed as Defendant. The said suit was decreed and it was held that the Plaintiffs and Defendants are the legal heirs of the deceased. However, it is relevant to note that the Defendants herein or any other contesting parties are not parties to the said suit.
16. In O.S. No.127/2004, Defendant Nos.1 to 3 herein are the Plaintiff Nos.1 to 3 in the said suit. The Plaintiff Nos.1 to 3 herein are the Defendant Nos.1 to 3 in the said suit. The Defendant No.4 in the said suit also claimed to be the wife of the deceased.
17. In O.S. No.127/2004, the following issues were framed:
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NC: 2024:KHC-D:4838 RSA No. 5940 of 2011 "1. Whether the Plaintiffs prove that, the 1st Plaintiff is the legally wedded wife of deceased Devendrappa and 2nd and 3rd Plaintiffs born out of the said wedlock?
2. Whether the Plaintiffs prove that they are only surviving legal heirs of deceased Devendrappa?
3. Whether the Defendants No.1 to 3 proves that the 1st Defendant is the leally wedded wife of deceased Devendrappa and Defendant No.2 & 3 are born out of the said wedlock?
4. Whether the Defendant No.4 to 6 proves that the Defendant No.4 is the legally wedded wife of deceased Devendrappa and Defendant No.5 & 6 are born out of the said wedlock?
5. Whether the Plaintiffs are entitled for the reliefs claimed in the suit?
6. What order or decree?"
18. The Trial Court in the said suit while recording its finding on issue Nos. 1, 3 & 4 has held as follows:
i) To substantiate the fact of Defendant No.1 who is the legally wedded wife of the deceased, she has produced the nominee letter given by the deceased Devendrappa to the employer at Ex.D1
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NC: 2024:KHC-D:4838 RSA No. 5940 of 2011 which is the nomination for the Karnataka Government Employee's Family Benefit Fund.
ii) Ex.D2 is the Birth Certificate of Defendant No.2 which discloses that Defendant No.2 is the daughter of deceased Devendrappa. Ex.D3 is the School Certificate of Defendant No.3
which discloses that Defendant No.3 is the daughter of deceased Devendrappa.
iii) The Plaintiffs nowhere disputed in the cross-examination of Defendant No.1 that Defendant Nos.2 and 3 are not the daughters of Defendant No.1.
iv) The material on record strongly suggests that Defendant No.1 is the wife of deceased-Devendrappa and he married Plaintiff No.1 during subsistence of his marriage with Defendant No1. There is no material to show that marriage with Defendant No.1 was dissolved and thereafter he married Plaintiff No.1.
v) The material on record discloses that the deceased-Devendrappa had
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NC: 2024:KHC-D:4838 RSA No. 5940 of 2011 three wives i.e., Premakka - Plaintiff No.1, Basavannavva - Defendant No.1 and Nagaratna @ Nagavva - Defendant No.4. That he married three ladies at different times. There is also material to show that deceased Devendrappa lived with all the three ladies for sufficient length of time as husband and wife.
vi) The material on record discloses that the deceased-Devendrappa married Defendant No.1 prior to his marriage with Plaintiff No.1 and Defendant No.4. If the marriage of deceased Devendrappa with Defendant No.1 is in subsistence of his marriage with Plaintiff No.1 and Defendant No.4 it cannot be called as legally valid marriage.
19. It is clear from the aforementioned that in O.S. No.127/2004 a categorical finding has been recorded by the Trial Court that Plaintiff No.1 herein was the wife of the deceased Devendrappa and Plaintiff Nos.2 and 3 herein are their children. It is further recorded that the deceased - Devendrappa married the Defendant No.1
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NC: 2024:KHC-D:4838 RSA No. 5940 of 2011 herein during the subsistence of his marriage with Plaintiff No.1. It has also been held that Defendant No.1 herein as well as Nagarathna are his wives. Despite the said finding while finally concluding the discussion, the Trial Court in the said suit has also recorded with a finding that Defendant No.1 has not positively proved that she is the legally wedded wife of the deceased Devendrappa. However, it is necessary to note that there is no basis for the last sentence of the said finding that Defendant No.1 (Plaintiff No.1 herein) has not proved that she is the wife of the deceased whereas while recording the earlier findings, the Trial Court has adverted to the material on record.
20. It is clear from the aforementioned that deceased - Devendrappa married Defendant No.1 and one Nagarathna during the subsistence of his marriage with Plaintiff No.1. It is further clear that Plaintiff No.1 has been nominated by the deceased to receive service benefits of the deceased from his employment with the
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NC: 2024:KHC-D:4838 RSA No. 5940 of 2011 State Government. Hence, it is clear that Plaintiff No.1 is the first wife and Plaintiff Nos.2 and 3 are the children of Plaintiff No.1 and deceased-Devendrappa.
21. It is not in dispute that the findings recorded in O.S. No.127/2004 have become final. The Trial Court and the First Appellate Court gravely erred in dismissing the suit of the Plaintiff despite the said findings as recorded in O.S. No.127/2004.
22. It is further relevant to note that Plaintiff No.1 has been nominated to receive the family pension benefits from the Karnataka Government Employees Family Benefit Fund by the deceased Devendrappa and the said aspect of the matter has not been questioned either by the Defendants or by any other person. The fact that the terminal benefits are being received by Plaintiff No.1 is notwithstanding the decree passed in OS No.116/2006 as is noticed from Ex.D1 in OS No.127/2004 which is the nomination letter submitted by the deceased Devendrappa to his employer.
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NC: 2024:KHC-D:4838 RSA No. 5940 of 2011
23. It is further relevant to note that in OS No.199/2003 Devendrappa was arrayed as Defendant No.1 and consequent to his death, without bringing his legal representatives on record, Defendant Nos.1 to 3 who are the Plaintiffs in the said suit entered into a compromise with one Lakshmappa who was the Defendant No.2 in the said suit. Hence, the said compromise decree is not binding on the Plaintiffs herein.
24. The Plaintiffs have averred in the plaint that the deceased was owning the suit property and after his death the Plaintiffs are cultivating the suit land and they are in actual and physical possession of the same. In the affidavit by way of examination-in-chief of PW.1 also, she has averred regarding the fact that the Plaintiffs have continued to be in actual and physical possession of the property after the death of the deceased. Ex.P1 is the RTC, Exs.2 and 3 are the Mutation Extracts, which disclose that the property was standing in the name of the deceased Devendrappa and pursuant to the decree passed
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NC: 2024:KHC-D:4838 RSA No. 5940 of 2011 in OS No.199/2003 the names of the Defendants have been entered in the revenue records. As already noticed herein above, the compromise decree in OS No.199/2003 is not binding on the Plaintiffs and hence, the change made in the revenue records consequent to the decree passed in OS No.199/2003 is also not required to be considered.
25. Having regard to the finding as noticed above that the Plaintiff No.1 is the first wife of the deceased and Plaintiffs Nos.2 and 3 are their children and having regard to the admitted position that the suit property belonged to the deceased Devendrappa and the fact that the testimony of the plaintiffs is unchallenged, the contention regarding the Plaintiffs being in peaceful possession and enjoyment of the suit property is required to be accepted.
26. In view of the discussion made above, substantial questions of law No.1, 2 and 3 are answered in the negative.
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27. It is noticed from the aforementioned that although Plaintiff No.1 is the wife of the deceased and Plaintiff Nos.2 and 3 are their children, it is also relevant to note that there is sufficient material to record a finding that Defendant No.1 is the second wife of the deceased and Defendant Nos.2 and 3 are their children. Hence, the relief sought for by the Plaintiffs for declaration of title and possession cannot be granted.
28. In considering whether in a suit for declaration whether a decree for partition can be granted, a Division Bench of this Court in the case of Rangappa v. Jayamma6 has held as follows:
"7. Order VII Rule 7 C.P.C. reads thus:
"Relief to be specifically stated: Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."
(emphasis supplied) 6 ILR 1987 KAR 2889
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NC: 2024:KHC-D:4838 RSA No. 5940 of 2011 The words "and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for" are wide enough to empower the Court to grant such relief as the plaintiff is entitled to, on the facts established on the evidence on record, even if such relief has not been specifically prayed for. 8.1. The provisions of Order VII Rule 7 of the C.P. Code are so widely worded that they do enable the Court to pass a decree for partition in a suit for declaration of title to immoveable property and possession thereof where it turns out that the plaintiff is not entitled to all the interest claimed by him in the suit property. In such a situation there is nothing unusual in giving relief to the parties by directing partition of the suit property according to the shares of the parties established in the suit. The normal rule that relief not founded on the pleadings should not be granted is not without an exception. Where substantial matters constituting the title of all the parties are touched in the issues and have been fully put in evidence, the case does not fall within the aforesaid rule. The Court has to look into the substance of the claim in determining the nature of the relief to be granted. Of course, the Court while moulding the relief must take care to see that relief it grants is not inconsistent with the plaintiff's claim, and is based on the same cause of action on which the relief claimed in the suit, that it occasions no prejudice or causes embarrassment to the other side; that it is not larger than the one claimed in the suit, even if, the plaintiff is really entitled to it, unless he amends the plaint; that it had not been barred by time on the date of presentation of the plaint.
8.2. No doubt the plaintiff has sought for exclusive title and he has not been able to prove his exclusive title; but has been able to prove that he is entitled to a half share in the suit properties. When a party claims
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NC: 2024:KHC-D:4838 RSA No. 5940 of 2011 exclusive title to the suit property and is able to establish that he is entitled to half of the suit property, it will not be unusual for the Court to pass a decree for partition and possession of his half share. In fact such a relief flows from the relief prayed for in the plaint that he is the exclusive owner of the entire property. When a larger relief is claimed and what is established is not the entire relief claimed in the suit but a part of it, as whole includes a part, larger relief includes smaller relief, and it also arises out of the same cause of action. Therefore in the instant case, nothing prevented the Court to pass a decree for partition, in order to avoid another suit for partition and to give relief to the party in conformity with the right he had established."
(emphasis supplied)
29. While considering as to the extent of share that is required to be granted it is relevant to notice Section 8 of the Hindu Succession Act, 19567 and Section 16 of the Hindu Marriage Act, 19558 , which reads as follows:
29.1 Section 8 and Class I of the Schedule to the Act 1956, reads as under:
"8. General rules of succession in the case of males.- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter -7
Hereinafter referred to as the 'Act 1956' 8 Hereinafter referred to as the 'Act 1955'
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(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;
(b) ...
(c) ...
THE SCHEDULE (See section 8) HEIRS IN CLASS I AND II Class I, Son; daughter; widow; .............. "
29.2 Section 16 of the Act 1955, reads as under:
"16. Legitimacy of children of void and voidable marriages.--(1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
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NC: 2024:KHC-D:4838 RSA No. 5940 of 2011 (3) Nothing contained in sub-section (1) or sub- section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."
30. In the plaint it is averred that the suit property is the property of Devendrappa. It is not averred that the said property is the ancestral joint family property. Hence, it is required to be construed that the property is the absolute property of Devendrappa.
31. Although in OS No.127/2004 there is some material to indicate that Defendant No.4 in the said suit ie., Nagarathna is the third wife of deceased Devendrappa and Defendant Nos.5 and 6 are the children of deceased Devendrappa and said Nagarathna, there is no finding recorded by the Trial Court in the said suit regarding the same and there is no material to indicate that Defendant Nos.5 and 6 are the children of the deceased Devendrappa.
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32. In view of the aforesaid discussion, the suit property which is the property of Devendrappa is required to be divided between the Plaintiffs and Defendant Nos. 2 and 3 as they are the Class I heirs of the deceased in terms of Section 8 of the Act 1956 equally and each of them are entitled 1/5th share each. Hence, the plaintiffs together are entitled to 3/5th share in the suit property.
33. In view of the discussion made above, although the Plaintiffs have filed the suit for declaration and injunction, it is just and proper that the relief claimed for by the Plaintiffs in the suit be moulded to grant a decree for partition. With regard to possession, it is relevant to note that the Defendant Nos.2 and 3 be permitted to take possession in accordance with law by instituting final decree proceedings.
34. In view of the aforementioned, the following order is passed:
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RSA No. 5940 of 2011
ORDER
i) The above appeal is allowed;
ii) The judgment and decree dated 5.7.2011
passed in RA No.19/2009 by the Additional Senior Civil Judge, Haveri and the judgment and decree dated 19.1.2009 passed in OS No.164/2008 by the Civil Judge (Jr.Dn.,) & JMFC, Haveri, are set aside;
iii) The suit in OS No.164/2008 filed by the Plaintiffs on the file of the Civil Judge (Jr.Dn.,) & JMFC, Haveri, is decreed as follows:
a) Plaintiff Nos.1 to 3 are jointly entitled to 3/5th share and Defendant Nos.2 and 3 are jointly entitled to 2/5th share in the suit property;
b) Defendants are restrained from interfering with the peaceful possession and enjoyment of the suit property by the Plaintiffs subject to Defendant Nos.2 and 3 initiating appropriate
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NC: 2024:KHC-D:4838 RSA No. 5940 of 2011 legal proceedings to demarcate their 2/5th share in the suit property and take possession of the same by instituting final decree proceedings;
c) Preliminary decree to be drawn after payment of appropriate court fee.
No costs.
Sd/-
JUDGE nd List No.: 19 Sl No.: 1