Karnataka High Court
Baburao S/O Kashinath Sherigar ... vs Renuka W/O Tulsiram Sugandhi on 17 September, 2024
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NC: 2024:KHC-K:7004
RFA No. 200061 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO.200061 OF 2023 (PAR/POS)
BETWEEN:
1. BABURAO
S/O KASHINATH SHERIGAR @ SUGANDHI
AGE: 69 YEARS, OCC: AGRICULTURE,
R/O CHOWDAPUR VILLAGE,
TQ. AFZALPUR, DIST. KALABURGI.
2. MURAHARI
S/O KASHINATH SHERIGAR @ SUGANDHI,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O CHOWDAPUR VILLAGE,
TQ. AFZALPUR, DIST. KALABURGI.
3. CHANDRAKANTH
Digitally signed
S/O KASHINATH SHERIGAR @ SUGANDHI,
by RENUKA AGE: 62 YEARS, OCC: AGRICULTURE,
Location: HIGH R/O CHOWDAPUR VILLAGE,
COURT OF TQ. AFZALPUR, DIST. KALABURGI.
KARNATAKA
4. SMT. SUMITRA W/O KRISHNARAO SUGANDHI,
AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
R/O KURUGUNTA VILLAGE,
TQ. SEDAM, DIST. KALABURGI.
...APPELLANTS
(BY SRI. SRINIVAS B. JOSHI, ADVOCATE)
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NC: 2024:KHC-K:7004
RFA No. 200061 of 2023
AND:
RENUKA W/O TULSIRAM SUGANDHI,
AGE: 58 YEARS, OCC: HOUSEHOLD,
R/O SHADNAGAR, DIST. RANGAREDDY,
TELANGANA STATE.
...RESPONDENT
(BY SRI. R. B. CHAWAN, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 R/W ORDER 41 RULE 1 AND 2 OF CPC, PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED
09.12.2022 PASSED BY SENIOR CIVIL JUDGE, AFZALPUR AND
REMAND BACK THE MATTER BEFORE TRIAL COURT.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE) This appeal is arising from the judgment and decree in a suit for partition in O.S.No.65/2021 on the file of the Senior Civil Judge, Afzalpur.
2. The suit for partition is filed in respect of four properties described in Schedule-A to G. The suit is decreed, awarding share in respect of Schedule-A to D properties. The Trial Court has granted 1/5th share in favor -3- NC: 2024:KHC-K:7004 RFA No. 200061 of 2023 of the plaintiff. The plaintiff is the sister of defendants No.1 to 3 and the daughter of defendant No.4. Their father is Kashinath Sherigar. He died in the year 1995. His wife Nagamma died in the year 1996. The couple had three sons and four daughters. Among four daughters, two daughters namely, Rukkamma and Sharada died issueless and they were not married. The mother also died leaving behind plaintiff and other defendants as legal representatives. Thus, the plaintiff claimed 1/5th share in the suit schedule properties.
3. All the defendants appeared through counsel, however, did not file written statement and did not contest the suit.
4. The plaintiff led evidence. The suit is decreed, accepting the plea of the plaintiff.
5. This appeal is filed by all the defendants.
6. The appellants/defendants have also filed an application in I.A.1/2024 under Order XLI, Rule 27 of the -4- NC: 2024:KHC-K:7004 RFA No. 200061 of 2023 Code of Civil Procedure, 1908, seeking permission of the Court to lead additional evidence. In support of their claim that the properties are the self-acquired properties of the appellants, the appellants have produced the certified copy of mutation entries and the certified copy of the ROR. Hence, I.A.1/2024 for production of additional documents is allowed.
7. On going through the grounds urged in the appeal memo, it is apparent that the appellants are admitting the fact that Schedule-A property bearing Sy.No.34, measuring 23 acres, 29 guntas is the ancestral property. The dispute is relating to remaining properties. Under these circumstances, the judgment and decree passed by the Trial Court in respect of Schedule-A property cannot be faulted. However, the decree in respect of the remaining properties is granted, as there was no contest. Since the remaining properties are the agriculture lands and now the appellants are claiming that the properties are purchased by them from their own income, -5- NC: 2024:KHC-K:7004 RFA No. 200061 of 2023 in the interest of justice, this Court is of the view that an opportunity should be given to the appellants to contest their case in respect of remaining properties. However, the appellants must be put to certain terms and accordingly, the following order is passed:
ORDER i. The appeal is allowed in part.
ii. The impugned judgment and decree dated 09.12.2022 on the file of Senior Civil Judge at Afzapur in O.S.No.65/2021 in respect of Schedule-B to G properties are set aside. The judgment and decree in respect of Schedule-A property are confirmed.
iii. The defendants are permitted to contest the suit on the condition that they shall hand over 1/5th share of the plaintiff in Schedule-A property within 60 days from this date. iv. The defendants shall file the written statement within 60 days from today. In case the possession of 1/5th share in the Schedule-A property is not handed over to the plaintiff, the -6- NC: 2024:KHC-K:7004 RFA No. 200061 of 2023 defendants' right to contest in respect of remaining properties shall stand forfeited. v. Subject to the above mentioned condition, the matter is remitted to the Trial Court to consider the case in respect of Schedule-B to G properties, in accordance with law. vi. The appellants shall also pay cost of Rs.25,000/- to the respondent within 60 days from today.
vii. It is further made clear that, this Court has not expressed any opinion in respect of the claim of the plaintiff over Schedule-B to G properties.
Sd/-
(ANANT RAMANATH HEGDE) JUDGE LG List No.: 1 Sl No.: 29 CT:SI