Karnataka High Court
Doddagadigeyya S/O Basayya Hiremath vs Sangayya S/O Irayya Hiremath on 10 June, 2022
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RFA No. 1782 of 2005
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10th DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR FIRST APPEAL NO. 1782 OF 2005 (PAR-)
BETWEEN:
1. DODDAGADIGEYYA S/O BASAYYA HIREMATH
AGED ABOUT 65 YEARS, OCC:AGRICULTURE,
R/O AVARADI TALUK, BAILHONGAL-590010
2. SANNAGADIGEYYA
S/O CHANNAYYA HIREMATH,
SINCE DECEASED BY HIS L.RS.
2(A) SANGAVVA W/O. SANNAGADIGAYYA HIREMATH, R/O.
AVARADI, BAILHONGAL.
2(B) MAHADEVI W/O. NIJAGUNAYYA PURANIKMATH,
KADABAGALLI, BAILHONGAL,
2(C) UMESH SANNAGADIGAYYA HIREMATH,
AVARDI, BAILHONGAL,
2(D)
GIRIJA DUNDAYYA KULKARNI,
AVARADI, BAILHONGAL,
2(E)
GEETA CHANNABASAYYA KALMATH,
M.K.HUBLI, BAILHONGAL.
3. BASAYYA S/O CHANNAYYA HIREMATH,
AGED ABOUT 50 YEARS,
OCC:AGRICULTURE,
R/O AVARADI TALUKBAILHONGAL
...PETITIONERS
(BY SRI. VENKATESH M. KHARVI, ADVOCATE)
AND:
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RFA No. 1782 of 2005
1. SANGAYYA S/O IRAYYA HIREMATH
AGED ABOUT 58 YEARS, OCC:AGRICULTURE,
R/O AVARADI TALUK, BAILHONGAL-590010
2. SHEKAYYA S/O IRAYYA HIREMATH
AGED ABOUT 55 YEARS, OCC:AGRICULTURIST,
R/O AVARADI, TALUK BAILHONGAL-590010
3. CHAMBAYYA S/O IRAYYA HIREMATH
AGED ABOUT 53 YEARS, OCC:AGRICULTURIST,
R/O AVARADI TALUK, BAILHONGAL-590010
4. RUDRAYYA S/O IRAYYA HIREMATH
AGED ABOUT 55 YEARS, OCC:AGRICULTURE,
R/O AVARADI TALUK, BAILHONGAL-590010
5. BASAYYA S/O SANGAYYA HIREMATH
AGED ABOUT 45 YEARS, OCC:AGRICULTURE,
R/O AVARADI, TALUK: BAILHONGAL-590010
6. VEERABHADRAYYA S/O. SANGAYYA HIREMATH
AGED ABOUT 40 YEARS, OCC:AGRICULTURE,
R/O AVARADI TALUK, BAILHONGAL-590010
7. SOMAYYA S/O SANGAYYA HIREMATH
AGED ABOUT 36 YEARS, OCC:BUSINESS,
R/O AVARADI TALUK, BAILHONGAL-590010
8. MARAYYA S/O NINGAYYA HIREMATH
AGED ABOUT 45 YEARS, OCC:DRIVER,
R/O AVARADI, TALUK BAILHONGAL-590010
9. NAGAYYA S/O NINGAYYA HIREMATH
AGED ABOUT 40 YEARS, OCC:DRIVER,
R/O AVARADI TALUK, BAILHONGAL-590010
10. NINGAYYA S/O MARAAYYA HIREMATH
AGED ABOUT 70 YEARSOCC:AGRICULTURE
R/O AVARADI TALUKBAILHONGAL-590010
11. GURUSIDDAYAA S/O NINGAYYA HIREMATH
AGED ABOUT 37 YEARS, OCC:AGRICULTURE,
R/O AVARADI, TALUK BAILHONGAL-590010
...RESPONDENTS
(SRI. MADAN MOHAN M. KHANNUR, ADVOCATE FOR R1 TO R3;
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RFA No. 1782 of 2005
NOTICE TO R4 TO 9 & 11 ARE SERVED;
VIDE ORDER DATED 04.12.2015 APPEAL AGAINST R10 IS
DISMISSED AS ABATED)
THIS RFA IS FILED U/S 96 R/W ORDER XLI RULE 1 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED: 23.09.05 PASSED IN
O.S. NO.8/2003 ON THE FILE OF CIVIL JUDGE (SR.DN) BAILHONGAL
PARTLY DECREEING THE SUIT FOR PARTITION AND SEPERATE
POSSESSION.
THIS RFA COMING ON FOR ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
JUDGMENT
This Regular First Appeal is preferred by the Defendant Nos.1 to 3 assailing the Judgment and Decree dated 23.09.2005 in O.S.No.8/2003, on the file of the Civil Judge (Sr. Dn.), Bailhongal, partly decreeing the suit of the plaintiff.
2. For the sake of convenience the parties to this Regular First Appeal are referred to as per their ranking before the trial Court.
3. It is the case of the plaintiffs that, one Marayya had five children and he died leaving behind five children who succeed to his estate. The Genealogical trees of the parties, reads as under:
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Marayya S. Hiremath Basayya Channayya Irayya Sangayya Ningayya (Deceased) (Deceased) (Deceased) (Deceased) (D.No.10) Doddagadigayya (D.No.1) Sannagadigayya Basayya (D.2) (D-3) Sangayya Shekarayya Chambayya (P.No.1) (P.No.2) (P.No.3) Rudrayya Basayya Veerbhadrayya Somayya (D.No.4) (D.No.5) (D.No.6) (D.No.7) Marayya Nagayya Gurusiddayya D.No.8 D.No.9 D.No.10
4. A perusal of the Genealogical tree would indicate that, Marayya had five children namely, Basayya, Channayya, Irayya, Sangayya and Ningayya. The defendant No.1 is the son of Basayya. Defendant Nos.2 -5- RFA No. 1782 of 2005 and 3 are the children of Channayya. The plaintiff Nos.1 to 3 are the children of Sangayya. Defendant No.10 Ningayya had three children namely defendant Nos.8 to 10. It is the case of the plaintiff that, the joint family consisting of Marayya and his children, as well as the plaintiffs and the defendants constitute joint family of late Marayya and they have various suit schedule properties. The plaintiffs made a claim for share in the suit schedule properties and same was denied by the defendants and as such, the plaintiffs have filed O.S.No.8/2003 on the file of the trial Court, seeking relief of partition and separate possession in respect of the suit schedule properties.
5. On service of notice/summons, the defendant No.4 entered appearance and filed detailed written statement and the same was adopted by defendant Nos.1 to 3, 5 to 11 as per memo dated 21.07.2003. It is the case of the defendant that, there was an earlier family arrangement and settlement between the parties in the year 1989-90 and same was acted upon by the parties. -6- RFA No. 1782 of 2005 Therefore, it is the contention of the defendants that, the names of the defendants are mutated in the revenue records in terms of family arrangement made in the year 1989-90 and therefore, the claim made by the plaintiffs seeking partition in respect of suit schedule properties does not arise and accordingly, the defendants sought for dismissal of the suit. The trial Court based on the pleadings on record, formulated the following issues for its consideration which reads as under:
(i) Do the plaintiffs prove that the suit schedule properties are joint ancestral properties?
(ii) Do the plaintiffs prove that they are enjoying the suit properties jointly by them and defendants?
(iii) Do the plaintiffs prove that, they are entitled for 1/14th share in the suit schedule properties?
(iv) Do the plaintiffs prove that, they have got cause of action to file the present suit against defendants?
(v) What order ?
6. In order to establish their case, the plaintiffs have examined two witnesses as P.W.1 and P.W.2 and got marked 09 documents as Ex.P.1 to Ex.P.9. The defendants have examined D.W.1 and D.W.2, however, defendants have not marked any documents before the trial Court. -7- RFA No. 1782 of 2005 The Court below after hearing the learned counsel appearing for the parties therein and taking into account the factual aspects on record, oral and documentary evidence, by its Judgment and Decree dated 23.09.2005, passed the following order, which reads as under:
"The suit of the plaintiffs is hereby partly decreed. The plaintiffs are entitled for 1/4th share each by metes and bounds in the properties shown at paragraph-2A of the plaint. Their suit is dismissed in respect of movable shown at paragraph - 2B of plaint."
7. Feeling aggrieved by the Judgment and Decree passed by the Court below, the contesting defendant Nos.1 and 2 have preferred appeal before this Court. During pendency of these proceedings, defendant No.2 died and his legal representatives were brought on record as legal representatives.
8. I have heard Sri. Venkatesh M. Kharvi, learned counsel appearing for the appellants and Sri. Madan -8- RFA No. 1782 of 2005 Mohan M. Khannur, learned counsel for respondent Nos.1 to 3.
9. Sri Venkatesh M. Kharvi, learned counsel appearing for the appellant argued that, the finding recorded by the trial Court cannot be accepted on the ground that the plaintiffs have not included all the agricultural properties and have deliberately left out certain documents and that apart there was partial partition in the family and same was urged before the trial Court and the said aspect was not considered by the Court below. Referring to the evidence of P.W.1, he argued that the agricultural land belonging to the members of the joint family was not included in the suit. He further contended that the trial Court has not properly appreciated the evidence of D.W.2 and arrived at a erroneous conclusion, which requires to be interfered in this appeal.
10. Per contra, learned counsel appearing for the respondent sought to justify the impugned Judgment and -9- RFA No. 1782 of 2005 Decree passed by the Court below and sought for dismissal of the appeal.
10. In the light of the submission made by the learned counsel appearing for the parties, the following points for determination is to be made in this appeal;
i) whether the trial Court was justified in ignoring the plea raised by the defendants relating to family arrangement ?
ii) Whether the impugned judgment and decree passed by the trial Court requires interference ?
iii) What order ?
11. In the light of the arguments advanced by the learned counsel appearing for the parties, I have perused the entire material on record of the trial Court and the genealogical tree narrated above, has not been questioned by the parties and as such, relationship between the parties is not disputed before the trial Court. It is the case of the plaintiff that, the suit schedule properties are the properties of their father Eraiah and accordingly, plaintiff sought for 1/14th share in the suit schedule properties. In this regard, the defendant has raised ground that the
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RFA No. 1782 of 2005 family arrangement was made by the parties to the lis and same was not considered by the trial Court and in this regard, I have carefully examined the defence taken by the defendants in the written statement, however, on perusal of the same the trial Court has not formulated the issues relating to the same. I have also noticed from the evidence on record, wherein, P.W.1 in the cross- examination dated 02.12.2003 has deposed that certain properties have been already partitioned between the parties during the last year. He further deposed that, he has not included the land property in the schedule and he further deposed that, he intend to file separate suit for the same and the said evidence has not been appreciated by the trial Court and ignoring the relevant evidence would cause injustice to the parties. That apart, P.W.1, deposed that Sangaiah-father of the defendant Nos.4 to 7 was alive at the time of the said oral partition. It is also forthcoming from the cross-examination of P.W.1 which reads as under:
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"It is true that there was a assembling of above said persons about 14 to 15 years back for solving our family problems, (witnesses, volunteers), there was no amicable settlement for partition."
12. I have also re-appreciated the evidence of D.W.1, wherein he deposed about the oral family arrangement and settlement with regard to agricultural land and house properties and other movables of the family of the plaintiff and defendants. The division of agricultural properties was done based on the fertility of the land. D.W.2, also deposed about the family arrangement and he further deposed that, he is a witness to the said family arrangement as urged by the defendants. In this regard, taking into account the pleadings and evidence on record, I am of the view that, the trial Court ought to have framed necessary issues relating to the family arrangement and resolved the dispute in accordance with law. It is relevant to consider paragraph Nos.5 to 7 of the judgment in the case of Nanjundachari Vs. The Chairman, Karnataka Electricity Board, Bangalore and another, reported in
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RFA No. 1782 of 2005 (1999) 2 KLJ 548, wherein, it is held that, not framing of a particular issue is an error of law and would cause substantial material irregularity amounting to mistrial of the case. In that view of the matter, I find force in the submission made by the learned counsel appearing for the appellant with regard to re-considering the factual aspects of the case on merits and to resolve the dispute afresh. In order to arrive at such conclusion, opportunity be provided to both the parties and therefore, it is a fit case to remand the matter to the trial Court for fresh consideration of the suit. In the result, I proceed to pass the following:
ORDER
i) The Regular First Appeal is allowed;
ii) The Judgment and Decree dated 23.09.2005 on the file of the Civil Judge, Senior Division Bailhongal is set aside.
i) The matter is remanded to trial Court for fresh consideration after affording opportunity of hearing to the parties and dispose of the suit expeditiously.
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RFA No. 1782 of 2005
ii) Since the parties to the suit are represented by their learned counsel, the plaintiff and defendants are directed to appear before the trial Court on 20.07.2022 without waiting for further notice in this regard, to avoid further delay in the matter.
Sd/-
JUDGE SVH