Karnataka High Court
Chanabassappa S/O Halkatteppa Chowdri ... vs Halkateppa S/O Itatappa Chowdri And Ors on 25 November, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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RSA No. 200090 of 2015
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO. 200090 OF 2015 (PAR)
BETWEEN:
CHANABASSAPPA S/O HALKATTEPPA CHOWDRI,
SINCE DECEASED BY HIS LRS
1. SMT. ANNAPURNA W/O CHANABASSAPPA CHOWDRI,
AGE: 61 YEARS, OCC : AGRI. & HOUSEHOLD,
R/O. ANEGUNDI GALLI, SHAHAPUR TOWN,
DIST. YADGIR-585223.
2. SIDDALINGAMMA W/O BASAVARAJ ARUNI,
AGE: 35 YEARS, OCC : AGRI. & HOUSEHOLD,
R/O. ANEGUNDI GALLI, SHAHAPUR TOWN,
DIST. YADGIR.
Digitally signed by
SHIVALEELA
DATTATRAYA UDAGI 3 MAHADEVI W/O SHEKARAPPA SHEELAD,
Location: HIGH AGE: 28 YEARS, OCC : AGRI. & HOUSEHOLD,
COURT OF
KARNATAKA R/O. ANEGUNDI GALLI, SHAHAPUR TOWN,
DIST. YADGIR.
4. GANGAMMA W/O GANGAPPA JAIN,
AGE: 24 YEARS, OCC : AGRI. & HOUSEHOLD,
R/O. SHAHAPUR TOWN, TQ. SHAHAPUR,
DIST. YADGIR.
NOW AT GANDHI CHOWK, SHAHAPUR PET,
YADGIR-585201.
...APPELLANTS
(BY SRI S. B. HANGARKI, ADVOCATE)
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RSA No. 200090 of 2015
AND:
1. HALKATEPPA S/O IRATAPPA CHOWDRI,
SINCE DECEASED BY HIS LR'S
A. VEERANNA S/O HALKATTEPPA CHOWDRI,
AGE: 65 YEARS, OCC : BUSINESS,
R/O. ANEGUNDI STREET, SHAHAPUR-585223,
TQ. SHAHAPUR, DIST. YADGIR.
SINCE DECEASED BY HIS LR'S
I. SANGAMMA W/O VEERANNA CHOWDRY,
AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O. ANEGUNDI STREET, SHAHAPUR,
DIST. YADGIR
II. VEERBHADRAPPA S/O VEERANNA CHOWDRY,
AGE: 40 YEARS, OCC: BUSINESS,
R/O. ANEGUNDI STREET, SHAHAPUR,
DIST. YADGIR.
III. AMARESH S/O VEERANNA CHOWDRY [ANGADI],
AGE: 38 YEARS, OCC: BUSINESS,
R/O. VILLAGE SOMANAMARADI, TQ. DEODURGA,
DIST. RAICHUR.
IV. SUJATHA W/O SHANKREPPA CHOWDRY,[ANGADI],
AGE: 28 YEARS, OCC: HOUSEHOLD,
R/O VILLAGE SOMANAMARADI, TQ. DEODURGA,
DIST. RAICHUR.
V. NEELU D/O SHANKARAPPA CHOWDRY [ANGADI],
AGE: 02 YEARS, [MINOR] U/G OF HER MOTHER
I.E., SUJATHA RESPONDENT NO.1 [A] [IV]
VI. ANNAMMA @IRAMMA W/O BASAVARAJ KORI,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O GANDHI CHOWK, SHAHAPUR,
DIST. YADGIR.
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RSA No. 200090 of 2015
VII. SAROJA D/O VEERANNA CHOWDRY,
AGE: 28 YEARS, OCC: HOUSEHOLD,
R/O. ANEGUNDI STREET, SHAHAPUR,
DIST. YADGIR.
VIII. SHANKARAMMA D/O VEERANNA CHOWDRY,
AGE: 26 YEARS, OCC: HOUSEHOLD,
R/O. ANEGUNDI STREET, SHAHAPUR,
DIST. YADGIR.
B. SHIVANNA S/O HALKATTEPPA CHOWDRI,
AGE: 63 YEARS, OCC: GOVT. SERVANT,
R/O. H.NO.137, GDA IST BLOCK,
BHAGYANAGAR, SEDAM ROAD,
KALABURAGI.
C. SIDDARAMAPPA S/O HALKATTEPPA CHOWDRI,
AGE: 60 YEARS, OCC: AGRI,
R/O. SOMANAMADDI, POST: JALAHALLI,
TQ. DEVADURGA, DIST : RAICHUR.
D. SANGANNA S/O HALKATTAPPA CHOWDRI,
AGE: 56 YEARS, OCC: BUSINESS,
R/O. JALAHALLI, TQ. DEVADURGA,
DIST. RAICHUR.
E. NEELAMMA W/O HALKATTAPPA CHOWDRI,
SINCE DECEASED BY HER LR'S ABOVE MENTIONED
RESPONDENT NO.1(A) TO (D).
2. AMRUTABAI W/O CHANBASSAPPA CHOWDRI
SINCE DECEASED BY L.R. HER ADOPTED SON
MALLIKARJUN S/O MUNEYAPPA BAHVIKATTI,
AGE: 25 YEARS, OCC :BUSINESS,
R/O. NEAR GANDHI CHOWK,
YADGIR.
3. SANGAMESH S/O CHANABASSAPPA CHOWDRI,
DEAD BY HIS WIFE
NEELAMMA @ NEELGANGAMMA
W/O SANGAMESH CHOWDRI,
AGE : 32 YEARS, OCC: AGRI & HOUSEHOLD,
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RSA No. 200090 of 2015
R/O. ANEGUNDI GALLI, SHAHAPUR TOWN,
DIST. YADGIR NOW AT BALBATTI,
TQ. JEWARGI, DIST. KALABURGI.
4. ANNAPURNAMMA W/O SOMASHEKAR GATTIN
AGED ABOUT 68 YEARS, OCC: HOUSEHOLD
R/O FOURISHANKAR NILAYA
OLD VEGETABLE MARKET, SHAHAPUR, DIST.YADGIR
AMENDED VIDE ORDER DATED 18.12.2018.
...RESPONDENTS
(BY SRI AJAY KUMAR A.K., ADVOCATE FOR R1(B)
SRI D.P. AMBEKAR, ADVOCATE FOR R1(C)
SRI J. AUGUSTIN, ADVOCATE FOR R1(D)
SRI G. G. CHAGASHETTI, ADVOCATE FOR R4
V/O DTD. 19.11.2024 NOTICE TO R3 IS HELD SUFFICIENT
R1 (E) DEAD AS PER CAUSE TITLE
R2, R1A(1) TO R1A(4), R1 A(6) TO R1A(8) ARE SERVED
R1 A(5) IS MINOR REPRESENTED BY R1 A(4))
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DT.
11.12.2014 PASSED IN R.A.NO.9/2013 BY THE COURT OF THE
DISTRICT JUDGE, YADGIR; AND THE JUDGMENT AND DECREE
DT.17.4.2010 PASSED IN O.S.NO.6/2009 BY THE COURT OF
THE CIVIL JUDGE (S.D), SHORAPUR SITTING AT SHAHAPUR;
BY ALLOWING THIS APPEAL WITH COSTS AND THEREBY
CONSEQUENTLY DISMISS THE SUIT OF THE PLAINTIFF. AND
APPELLANTS ALSO ALTERNATIVELY PRAY FOR AN ORDER OF
REMAND OF THE ABOVE CASE TO THE TRIAL COURT FOR
FRESH DISPOSAL AFTER GIVING THE OPPORTUNITY TO THE
APPELLANTS TO LEAD EVIDENCE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 200090 of 2015
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL) The present appeal is filed by the defendants aggrieved by the judgment and decree dated 17.04.2010 passed in O.S.No.6/2009 (old No.35/94) by the Civil Judge (Sr.Dn.), Shorapur sitting at Shahapur (hereinafter referred to as 'the Trial Court' for short) by which the suit of the plaintiffs for partition and separate possession was decreed holding that legal representatives of the plaintiffs and legal representatives of the defendants having half shares in the suit schedule properties, which is confirmed by the Judgment and order dated 11.12.2014 passed in R.A.No.9/2013 by the Court of District Judge, Yadgir (hereinafter referred to as 'the First Appellate Court' for short).
2. The above suit in O.S.No.6/2009 is filed by the plaintiffs claiming that the suit schedule properties are the ancestral properties of the plaintiffs and the defendants -6- NC: 2024:KHC-K:8820 RSA No. 200090 of 2015 and they are governed by the Mitakshar School of Hindu Law.
3. That one Shivalingappa was the common ancestor of the parties. He had two sons by name Basappa and Erappa. Basappa died issueless. After the demise of said Basappa, the said ancestor-Shivalingappa and his son Erappa continued to be the joint family members. After the death of Shivalingappa, his son Erappa being the sole surviving co-parcenor started to enjoy all the suit schedule properties.
4. That the said Erappa had four sons by name Channabasappa, Iratappa, Muddappa and Doddapa. The said Muddappa and Doddappa died issueless. The said Channabasapa has got a son by name Shivappa; and the said Iratappa has got a son by name Erappa. The said Shivappa s/o Channabasappa has got a son by name Halkatappa; and the said Erappa s/o of Iratappa has got a son by name Irantappa. The said Halkatappa has got a son by name Channabasappa, who is the original -7- NC: 2024:KHC-K:8820 RSA No. 200090 of 2015 defendant herein and the said Irantappa has got a son by name Halkatappa, who is the original plaintiff herein.
5. That there was no partition by metes and bounds during the life time of ancestors of the original plaintiff and defendant. The suit schedule properties mentioned in the schedule-A are standing in the name of original defendant-Channabasappa being the elderly member of the branch of the family. That merely because the suit schedule properties stand in the name of the original defendant that itself would not confer a conclusive title over the suit schedule properties in his favour. The original plaintiff-Halkatteppa has got half share in the entire suit schedule properties. The plaintiffs and defendants being the co-parceners are thus entitled for equal share in the suit schedule properties. However, taking advantage of the entries in the municipal records, defendants had set up a false plea of partition, though partition had not taken place between the parties or their ancestors.
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6. That the defendants, behind the back of the plaintiffs, without their knowledge, had obtained permission for construction of house(padasala) on the property bearing Nos.9-52 and 9-53, situated at Shahapura. Thus, constraining the plaintiffs to file suit for injunction in O.S.No.20/1993. In which the plaintiffs had contended that the suit schedule properties are the joint family properties. But in the said suit, the defendant contended that there was a partition in the suit schedule properties and house properties have bestowed to him. The original plaintiff had filed an IA seeking temporary injunction, but the same came to be dismissed. Being aggrieved by the same, the original plaintiff filed Misc.Appeal No.31/1993, which came to be dismissed. Aggrieved by the same, the plaintiff has preferred CRP No.89/1994, which also came to be dismissed with an observation that the original defendant had given an undertaking that he would not encroach upon the padasala (suit house) in any manner. That the original -9- NC: 2024:KHC-K:8820 RSA No. 200090 of 2015 plaintiff had also obtained the stay of operation and execution of construction permission which is still now in force. But defendant was hurriedly trying to make construction of said padasala and also trying to alienate and create an encumbrance over the suit schedule properties with an intention to cause loss to the right of the plaintiff and since original defendant was not willing to affect partition if the suit schedule properties and allot the share in favour of the plaintiffs, the plaintiffs constrained to file the suit for partition.
7. The defendants in the written statement denied the plaint averments and claimed that they were the exclusive owners in possession and enjoyment of the house and other landed properties (suit schedule properties), except house property bearing No.9-53, which stood in the name of plaintiffs. The suit schedule properties were not the joint family properties of the plaintiffs and the defendants. The suit schedule properties were subjected to partition amongst ancestors
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NC: 2024:KHC-K:8820 RSA No. 200090 of 2015 of the parties long ago during their life time and their progeny have been exclusively enjoying the same without interference by any one whomsoever. That the properties were no more available for partition. The defendants specifically denied the pedigree of the family as claimed by the plaintiffs. However, admitted that the properties stood in the name of the defendants as claimed by the plaintiffs. That there are other properties belonging to the plaintiffs that were of the joint family properties, which are not included in the suit claim. There was no cause of action to file suit. Hence, sought for dismissal of the suit.
8. On the basis of the pleadings of the parties, the Trial Court framed the following issues for its consideration:
1) Whether plaintiffs prove that the suit schedule properties are the undivided ancestral joint properties of themselves and the defendant?
2) Whether the plaintiffs have properly described the properties in dispute and joined some other properties alleged to be in their possession for partition?
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3) Whether the plaintiffs have half share in the suit properties and are they entitled for partition and separate possession?
4) Whether the Court fee paid is proper and correct?
5) What reliefs the parties are entitled for?
9. The legal representatives of the plaintiff has been examined as PW.1 and another witness as PW.2 and got marked 7 documents as Exs.P1 to P7. No witnesses were examined by the defendants and no evidence led in on behalf of the defendants. The Trial Court on appreciating the evidence led in by the plaintiffs, answered the issue Nos.1 to 4 in the affirmative and consequently, decreed the suit.
10. In the appeal filed by the defendants, the First Appellate Court framed the following points for its consideration:
1) Whether the L.Rs. of original plaintiff prove that the suit schedule properties are the joint family properties of the original plaintiff and original defendant?
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2) Whether the L.Rs. fo the original plaintiff are entitled to get share in the suit schedule properties?
3) Whether the LR.s of the deceased defendant proves that there was a partition in the suit schedule properties in between the ancestors of the original plaintiff and original defendant?
4) Whether the impugned judgment and Decree under appeal passed by the trial Court are illegal, capricious, perverse and thereby requires interference by this Court?
5) What Order or Decree?
and the First Appellate Court answered points Nos.1 and 2 in the affirmative and point Nos.3 and 4 in the negative and consequently dismissed the appeal by confirming the judgment and decree passed by the Trial Court. Aggrieved by the same, the appellants/defendants have preferred the present appeal.
11. This Court while admitting the appeal framed the following substantial questions of law for consideration:
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RSA No. 200090 of 2015
(i) Whether the Trial Court and the First
Appellate Court were justified in
decreeing the suit for partition of the plaintiffs in the light of specific denial of the genealogy by the defendants?
(ii) Whether the First Appellate Court in confirming the judgment and decree passed by the Trial Court is justified in holding that the appellants were indeed given sufficient opportunity by the Trial Court?
12. The learned counsel for the appellants/defendants referring to genealogy produced at page Nos.12 and 13 of the appeal memo submitted that the genealogy produced at page No.13 is as per the contention of the plaintiffs in the plaint, while genealogy produced at page No.12 is as per the contention of the defendants in the written statement. He submits that there is difference between two genealogies, which was evident and apparent from the pleadings, which the Trial Court and the First Appellate Court have lost sight of.
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13. He further submits that the defendants had enclosed all materials evidence along with written statement, which admittedly available on record. However, the Trial Court without affording sufficient opportunity to defendants to lead evidence had disposed of the suit in hurried manner causing prejudice, hardship and injustice to the defendants.
14. He further submits that the plea of appellants before the First Appellate Court to provide an opportunity has gone unheard. Referring to paragraph No.16 of the judgment of the First Appellate Court, the learned counsel submits that though the First Appellate Court has taken note of the dates of hearing before the Trial Court has however failed to exercise its power under Rule 23 of Order 41 in remanding the matter for consideration of the evidence on behalf of the defendants. Thus, he submits that lack of sufficient opportunity to the defendants has caused injustice warranting interference in the hands of this Court.
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15. In support of the case, the learned counsel for the appellants/defendants has relied on the judgment of the Apex Court in the case of The Government of Andhra Pradesh through Principal Secretary and others vs. Pratap Karan and others reported in AIR 2016 SC 1717. Hence, he prayed for allowing the appeal.
16. Per contra, learned counsel Sri.D.P.Ambekar, appearing for the respondents-plaintiffs submits that averments made in the written statement are bald and vague. Even if documentary evidence were made available in the absence of specific plea in that regard, the evidence was of no avail. Further, referring to very same paragraph No.16 of the judgment of the First Appellate Court, learned counsel submits that the evidence of the plaintiffs was recorded on 06.03.2010, on which date the defendants and their counsel were absent. Thereafter, matter was posted on 20.03.2010, 27.03.2010 and 08.04.2010 and on all these dates the
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NC: 2024:KHC-K:8820 RSA No. 200090 of 2015 defendants have remained absent, it is only thereafter the Trial Court has passed judgment on 17.04.2010. As such, he submits that the appellants cannot be heard to say that they were not provided with sufficient opportunity. He submits that the First Appellate Court had taking note of this aspect of matter, has rightly allowed the appeal warranting no interference in the matter.
17. Heard. Perused the records.
18. From the perusal of the averments in the written statement, the first thing which is apparent is the serious dispute with regard to the genealogy proposed by the plaintiffs. The genealogy furnished by the appellants/defendants at page No.13 of the appeal memo is the one which reflects the genealogy proposed by the plaintiffs. The genealogy produced at page No.12 of the appeal memo is the genealogy as contended by the defendants. Though the net result of both the genealogies would be that the plaintiffs and defendants are prime contenders in respect of the suit schedule properties,
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NC: 2024:KHC-K:8820 RSA No. 200090 of 2015 there are intervening branches of families between the two. This has an effect on the nature of possession and enjoyment of the properties by different branches of the families. Though according to the plaintiffs it continued under the branch of one Erappa through and under whom the plaintiffs are claiming the share, while the suit schedule properties continued to in possession under different branches of families according to defendants.
19. The defendants in the written statement has specifically averred that there was prior partition amongst the ancestors of the plaintiffs and the defendants and in support of the same, they had enclosed Khasra Pahani and other revenue records. Thus, foundational pleading with regard to the prior partition was made in the written statement, therefore, it cannot be said that there is no pleading at all.
20. No doubt, the defendants have not been present when the plaintiffs witnesses were examined on 06.03.2010 and subsequently on 20.03.2010 when the
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NC: 2024:KHC-K:8820 RSA No. 200090 of 2015 matter was posted for their cross examination and further the defendants have not even appeared thereafter on 27.03.2010 when it was posted for their evidence and even on 08.04.2010 when the matter was listed for arguments. Learned counsel for the appellants/defendants at this juncture submits that original defendant-Channabasappa passed away during the pendency of the suit and upon his demise, his wife, son and daughters were brought on record as his legal representatives. Even his wife and son, who were looking after the matter also passed away and the matter was left to be looked after by the daughters Siddhilingamma, Mahadevi and Gangamma, who are residing in different places and they could not contact their counsel and prosecute the matter. He further submits that the dates of hearing which were granted by the Trial Court were so short and proximate that even the counsel could not contact them and prosecute the matter. He submits that within a span of one month, plaintiffs witnesses have been examined, arguments have been heard and the
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NC: 2024:KHC-K:8820 RSA No. 200090 of 2015 judgment has been passed, in a matter where a specific pleadings were made, documents were produced. Thus, he submits that at any standard it cannot be taken as sufficient opportunity having been given.
21. There is considerable force and substance in submissions being made by learned counsel for the appellants/defendants. The fact remains that the original defendant passed away during the pendency of the suit. Undisputedly, his wife and son also passed away during the pendency of the suit. Daughters are admittedly residing in different places. Quite possible that the counsel on record was not in a position to contact them either and conduct the matter, particularly in view of the dates of hearing fixed by the Trial Court, namely, 06.03.2010, 20.03.2010, 27.03.2010 and disposed of the suit on 08.04.2010, all within about 30 days.
22. This is in the light of the fact that a specific plea was raised in the written statement by the defendants regarding the prior partition and properties being enjoyed
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NC: 2024:KHC-K:8820 RSA No. 200090 of 2015 exclusively defendants supported by the public documents such as Khasra Pahani, which is considered to be deed of Title. In this regard, the learned counsel has relied upon the judgment of the Apex Court in the case of The Government of Andhra Pradesh through Principal Secretary and others vs. Pratap Karan and others reported in AIR 2016 SC 1717, wherein at paragraph Nos.75 and 76 held as under:
"75. It has been admitted in the written statement that in the Setwar and Vasool Baqui, the name of Raja was recorded as the owner of the said S.No.613. Subsequently, in the Khasra Pahani which is the basic record of right prepared by the Board of Revenue, Andhra Pradesh for the year 1954-55 the name of Raja Shiv Raj Bahadur was entered as the absolute owner and possessor of the suit land. Hence, the title of the owner supported by various documents including the Khasra Pahani, which is a document of title has been proved beyond doubt.
76. Recently, in the case of Collector vs. Narsing Rao, (2015) 3 SCC 695, this Court (one of us- Hon'ble C. Nagappan, J. was a party) had considered a similar question where the challenge to the title of pattadar by the Government was negatived and this court held :-
"13. Consequent to the merger of Hyderabad State with India in 1948 the Jagirs were abolished by the Andhra Pradesh (Telangana Area) (Abolition of Jagirs) Regulation, 1358 Fasli. "Khasra pahani" is the basic record-of-
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NC: 2024:KHC-K:8820 RSA No. 200090 of 2015 rights prepared by the Board of Revenue Andhra Pradesh in the year 1954- 1955. It was gazetted under Regulation 4 of the A.P. (Telangana Area) Record-of-Rights in Land Regulation, 1358 F. As per Regulation 13 any entry in the said record-of-rights shall be presumed to be true until the contrary is proved. The said regulation of 1358 F was in vogue till it was repealed by the A.P. Rights in Land and Pattadar Pass Books Act, 1971, which came into force on15-8-1978. In the 2nd Edn. (1997) of The Law Lexicon by P. Ramanatha Aiyar (at p. 1053) "Khasra" is described as follows:
"Khasra.--Khasra is a register recording the incidents of a tenure and is a historical record. Khasra would serve the purpose of a deed of title, when there is no other title deed."
23. The First Appellate Court despite having been brought about this aspect of the matter has declined to grant an opportunity of leading evidence to the defendants.
24. In the fitness of the things this Court finds it appropriate that an opportunity be granted to the defendants to lead their evidence and thereafter matter be disposed of in accordance with law. The substantial
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NC: 2024:KHC-K:8820 RSA No. 200090 of 2015 questions of law raised above are answered accordingly. Hence, the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment and decree dated 17.04.2010 passed in O.S.No.6/2009 (old No.35/1994) by the Trial Court and which confirmed by the First Appellate Court in R.A.No.9/2013 are hereby set aside.
(iii) The matter is remitted back to the Trial Court. The Trial Court shall provide sufficient opportunity to the defendants to lead evidence in support of their claim, if need be an opportunity may also provided to the plaintiffs to lead rebuttal evidence, if any, and thereafter pass appropriate orders in accordance with law.
(iv) Since the suit is pending since 1994, the Trial Court shall endeavor to complete the
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NC: 2024:KHC-K:8820 RSA No. 200090 of 2015 entire exercise within an outer limit of six months from the date of receipt of a certified copy of this order.
(v) The parties shall co-operate in expeditious disposal of suit without seeking any unnecessary adjournments.
(vi) Since the parties are being represented by their counsel, they shall appear before the Trial Court on 15.01.2025 without any further notice. If there are any respondents unrepresented, notice to them be issued. In view of disposal of main matter, pending IAs, if any, do not survive for consideration and same shall be disposed of.
Sd/-
(M.G.S.KAMAL) JUDGE SDU LIST NO.: 1 SL NO.: 17 CT:PK