Karnataka High Court
Smt.Bhagyashree W/O Subhas Naik vs Balappa S/O Bau Khot on 13 June, 2023
-1-
RFA No. 100081 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF JUNE 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO.100081 OF 2017
BETWEEN:
1. SMT.BHAGYASHREE,
W/O. SUBHAS NAIK,
AGE: 39 YEARS,
OCC: HOUSEHOLD AND
AGRICULTURE, R/O: NAGANUR,
TQ: GOKAK, NOW AT TAPSHI,
TQ: GOKAK. 590 001
2. SMT. SHOBHA,
W/O. MAHANTESH PUJARI,
AGE: 37 YEARS,
OCC: HOUSEHOLD AND
AGRICULTURE, R/O: NAGANUR,
TQ: GOKAK, NOW AT GOKAK. 590 001
Digitally signed
by
MOHANKUMAR
B SHELAR 3. BAPU,
Date:
2023.06.28 S/O. BALAPPA KHOT,
11:50:48 +0530
AGE: 35 YEARS,
OCC: AGRICULTURE,
R/O. NAGANUR,
TQ: GOKAK. 590 001
4. SANTOSH,
S/O. BALAPPA KHOT,
AGE: 33 YERAS,
OCC: AGRICULTURE,
R/O: NAGANUR,
TQ: GOKAK. 590 001
5. SMT. SAROJINI,
-2-
RFA No. 100081 of 2017
W/O. BALAPPA KHOT,
AGE: 62 YEARS,
OCC: HOUSEHOLD AND
AGRICULTURE,
R/O: NAGANUR, TQ: GOKAK. 590 001
...APPELLANTS
(BY SRI.A.P.MURARI, ADVOCATE)
AND:
1. BALAPPA, S/O. BAPU KHOT,
AGE: 71 YEARS,
OCC: AGRICULTURE,
R/O. NAGANUR, TQ: GOKAK 590 001
2. MAYAPPA LAXMAN GUDENNAVAR,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: NEAR BUS STAND,
NAGANUR, TQ: GOKAK 590 001
3. MUTTEWWA,
W/O. MAYAPPA GUDENNAVAR,
AGE: 39 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE,
R/O. NEAR BUS STAND,
NAGANUR, TQ: GOKAK 590 001
4. VISHWANATH,
S/O. MAYAPPA GUDENNAVAR,
AGE: 14 YEARS,
5. SHILPA,
D/O. MAYAPPA GUDDENNAVAR,
AGE: 12 YEARS,
6. SHRUTI,
D/O. MAYAPPA GUDENNAVAR,
AGE: 10 YEARS,
7. AISHWARYA,
D/O. MAYAPPA GUDENNAVAR,
-3-
RFA No. 100081 of 2017
AGE: 08 YEARS,
RESPONDENT NOS.4 TO 7 ARE MINORS
REP.BY THEIR NATURAL
MOTHER MINOR GUARDIAN
RESPONDENT NO.3 MUTTEWWA
...RESPONDENTS
(BY SMT. B.G.NAIK AND SRI.P.G.NAIK, ADVS FOR RESPONDENT
Nos.2 TO 7.
NOTICE TO RESPONDENT NO.1 IS SERVED AND
UNREPRESENTED.)
THIS RFA IS FILED UNDER SEC. 96 R/W ORDER 41 RULE 1
OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
15.12.2016 PASSED IN O.S.NO.117/2013 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE, GOKAK, DISMISSING THE SUIT
FILED FOR DECLARATION AND INJUNCTION.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellants challenging the judgment and preliminary decree dated 15.12.2016 passed in O.S. No.117/2013 by the learned Senior Civil Judge, Gokak.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. -4- RFA No. 100081 of 2017
3. The appellants are the plaintiffs and the respondents are the defendants. The plaintiffs filed a suit for partition and separate possession against the defendants. It is the case of the plaintiffs that, one Bapu Khot was the original popositus. He had a wife by name Lagamawwa and two sons namely Balappa, who is defendant No.1, and Shankar. Balappa has a wife called Sarojini, who is plaintiff No.5, and two daughters and two sons i..e the plaintiffs are the children of Balappa. Plaintiff No.5 is the legally wedded wife of defendant No.1. The suit schedule properties are the ancestral properties of the plaintiffs and defendant No.1. Defendant No.1 inherited the properties from his father Bapu Khot, as Shankar had separated long back. He has not been arrayed as a party. It is contended that the plaintiffs and the defendants are in joint possession and enjoyment of the suit properties. The plaintiffs demanded for partition and separate possession but the defendants refused to effect a partition. Hence, cause of action arose for the plaintiffs to file a suit for partition and separate possession. -5- RFA No. 100081 of 2017
4. Defendant No.2 filed written statement denying the averments made in the plaint and contended that the plaintiffs have not included other ancestral properties in the suit schedule. It is further denied that the suit properties are the ancestral properties and same were inherited by defendant No.1 from his father. It is also denied that Shankar had separated long back. He is not arrayed as a party. It is denied that there was no partition between the plaintiffs and defendants at any point of time. It is contended that the plaintiffs filed an appeal challenging M.E. in the name of defendant No.2 and also mutation in the name of defendant Nos.3 to 7. The Assistant Commissioner dismissed the appeal filed by the plaintiffs. It is contended that the plaintiffs have no share in the suit schedule properties. Hence, the suit filed by the plaintiffs is not maintainable. Hence prayed to dismiss the suit.
5. Defendant Nos.3 to 7 filed a memo adopting the written statement filed by defendant No.2 and prayed to dismiss the suit.
-6-RFA No. 100081 of 2017
6. The trial Court on the basis of the pleadings of the parties, framed the following issues:
ISSUES Issue No.1. Whether plaintiffs prove that the suit properties are ancestral and joint family properties?
Issue No.2. Whether plaintiffs prove that the defendantNo.1 without legal necessity sold Survey No.209/8A in favour of defendant No.2?
Issue No.3. Whether defendant No.2 proves that he is a bonafide purchaser for value? Issue No.4. Whether plaintiff is entitled for the reliefs as prayed?
Issue No.5. What order or decree?
ADDL. ISSUE Whether the defendant Nos.2 to 7 prove that the suit is not maintainable in view of non inclusion of other family properties?
7. The plaintiffs in order to substantiate their case, plaintiff No.3 was examined as PW-1, and plaintiff No.5 was examined as PW-2 and got marked documents as Exs.P-1 to P-8. Defendant No.2 was examined as DW.1 and examined two witnesses as DWs.2 and 3 and got marked documents as Exs.D1. to D.17.
[
8. The trial Court after recording the evidence and considering the oral and documentary evidence, answered -7- RFA No. 100081 of 2017 Issue Nos.1 to 3 and additional issue in the affirmative and issue No.4 in the negative and consequently dismissed the suit of the plaintiffs.
9. The plaintiffs aggrieved by the impugned judgment and preliminary decree filed this appeal.
10. Heard the learned counsel for the plaintiffs and the learned counsel for the defendants.
11. Learned counsel for the plaintiffs submitted that the trial Court has committed an error in dismissing the suit for non-inclusion of other family properties. He submitted that that the trial Court could have provided an opportunity to the plaintiff to include other properties. Hence, he submitted that the judgment passed by the trial Court is perverse and arbitrary. On these grounds, he prayed to allow the appeal.
12. Per contra, learned counsel for the defendants submitted that PW.1 in the cross-examination admitted that plaintiffs have not included two other ancestral properties. -8- RFA No. 100081 of 2017 Hence, the suit for partial partition is not maintainable. On these grounds, she prays to dismiss the appeal.
13. Heard, perused the records and considered the submission of the learned counsel for the parties.
14. The point that arises for our consideration are:
(i) Whether the suit filed by the plaintiffs for partial partition is maintainable?
(ii) Whether the plaintiffs prove that the judgment and decree passed by the trial Court is perverse and calls for interference?
(iii) What order or decree?
15. Point No.(i): It is the case of the plaintiffs that, propositus Bapu died leaving behind his two sons namely Balappa-defendant No.1 and Shankar. Plaintiff No.5 is the wife of defendant No.1 and plaintiffs 1 to 4 are the children of defendant No.1. defendant No.1 and his brother Shankar separated long back by effecting partition in respect of the joint family properties. In the said partition, suit properties were fallen to the share of defendant No.1 and there is no partition between the plaintiffs and defendant No.1. in the -9- RFA No. 100081 of 2017 suit schedule properties. They are jointly enjoying the suit properties as members of Hindu undivided family. Defendant No.1 was addicted to bad vices and defendant No.1 started to neglect the plaintiffs. The plaintiffs came to know that defendant No.1 sold item No.B(2) property bearing RS No.209/8A measuring 13 guntas situated at Nganur village of Gokak taluk to defendant No.2 without there being any legal or family necessity. Defendant No.2 has created an unregistered relinquishment deed and illegally transferred the suit properties in favor of his wife and children and mutation entry in the revenue records. On coming to know the illegal transaction of sale between defendant Nos.1 and 2 and subsequent illegal transfer by way of mutation between defendant No.2 and defendant Nos.3 and 7, the plaintiffs preferred an appeal before the Assistant Commissioner. The said appeal came to be disposed of with a direction to the plaintiffs to approach the civil Court. The plaintiffs filed a suit for partition.
- 10 -
RFA No. 100081 of 2017
16. The defendant have taken a specific contention in the written statement that the plaintiffs have not included other ancestral properties in the suit. Hence, the suit for partial partition is not maintainable. In order to substantiate their contention, the defendants have produced Ex.D-11 i.e. Form 8A pertaining to property bearing Sy.No.207/1+2A/D/1 measuring 7 acres 4 guntas of Naganur village. The said property stand in the joint names of defendant No.1 and his brother Shankar. Ex.P-4 mutation entry itself reveals that, in the alleged partition between defendant No.1 and his brother Shankar, 3 guntas of land out of total extent of 6 guntas in R.S. No.210/5B and 4 acres 29 guntas of land (including the portion of land purchased by defendant No.1) out of the total extent of 7 acres 4 guntas in R.S. No.207/1+2A/D/1 of Naganur village were allotted to the share of defendant No.1. P.W-1 in the course of cross examination has stated as under:
'' ಸ ೆ ನಂ.207/1+2ಎ/ಎ/1 ಸ ತು ನನ ತಂ ೆ ಾಗೂ ಆತನ ಸ ೋದರರದ ಮ ಾ ೇವ ಮತು ಲಗಮಪ ರವರ ೆಸ ನ ೆ ಎಂದ ೆ ಸ . ಅ ೇ ೕಸ ಸ ೆ ನಂ.210/5!ಯ 5 ಗುಂ#ೆ ಸ ತು ನನ ತಂ ೆ ೆಸ ನ ೆ ಎಂದ ೆ ಸ . ಸದ ಎರಡೂ ಸ ತುಗಳ' ನಮ( )*ಾ+, ತ ಎಂದ ೆ ಸ . ಅವ-ಗಳನು ಈ ಾ ೆಯ /ೇ 0ಲ ಎಂದ ೆ ಸ . 1ಾನು ಸವತಃ /ಾಗುವ3 4ಾಡುವ-5ಲ ಎಂದ ೆ ಸ ಯಲ. ವ6ವ/ಾಯದ ಉಪಕರಣಗಳ: ನಮ( ಬ3 ಇಲ ಎಂದ ೆ
- 11 -RFA No. 100081 of 2017
ಸ ಯಲ. 21ೇ ಪ+= ಾ5>ೆ *ೊಂದ ೆ ?ೕಡಲು ಾ5ಯರು ಾಗೂ 11ೇ ಪ+= ಾ5 @ಾABಾC ಈ ಾ ೆ ಸ 0 ೆDೕ ೆ ಎಂದ ೆ ಸ ಯಲ. ನಮ( EFಣ ಾಗೂ ಮದು ೆಗ3>ಾC ಹಣ ಅಗತ6HIದ Jಾರಣ, ನನ ತಂ ೆ ಕಲವ- ಸ ತುಗಳನು 4ಾ ಾಟ 4ಾL ಾD ೆ ಎಂದ ೆ ಸ ಯಲ. ಕ+ಯಪತ+ ಆಗುವ 5ನ 1ಾ ೆಲರೂ ಾಜ ದುD ಹಣ ಪNೆದು ಸO 4ಾL ೆDೕ ೆ ಎಂದ ೆ ಸ ಯಲ.''
17. From the perusal of the cross examination, P.W-1 has clearly admitted, the plaintiffs have not included the aforesaid properties in the suit and have not offered any explanation as to why those properties were not included in the suit schedule properties.
18. The admission of PW-1 itself is sufficient to hold that the plaintiffs have not included all the ancestral properties. In a suit for partition, all the joint family properties of the interested co-sharers should be included. In the instant case, the plaintiffs have failed to include all the ancestral properties of plaintiffs and the defendants. Hence, suit of the plaintiffs is not maintainable for non-joinder of necessary properties. In view of the law laid down by the Hon'ble Apex Court in the case of S.Satnam Singh & Ors. v. Surender Kaur & Anr. reported in AIR 2009 SC 1089, wherein it is held as under:
- 12 -RFA No. 100081 of 2017
"16. Before adverting to the rival contentions of the parties, it must be kept in mind the principle that ordinarily a party should not be prejudiced by an act of court. It must also furthermore be borne in mind that in a partition suit where both the parties want partition, a defendant may also be held to be a plaintiff. Ordinarily, a suit for partial partition may not be entertained. When the parties have brought on records by way of pleadings and/or other material that apart from the property mentioned by the plaintiff in his plaint, there are other properties which could be a subject matter of a partition, the court would be entitled to pass a decree even in relation thereto."
and also the co-ordinate Bench of this Court in the case of G.M. Mahendra v. G.M. Mohan and Another reported in (2011) 4 KCCR 2461 held that, "non-inclusion of joint family property, the suit for partial partition is not maintainable.
19. In view of the above discussion, we answer Point No.(i) in the negative.
20. Point No.(ii): The trial Court considering the pleadings of the parties and evidence placed on record by the parties and also admission of PW-1 that, plaintiffs have not included other ancestral properties, has rightly dismissed
- 13 -
RFA No. 100081 of 2017the suit of the plaintiffs. Accordingly, we answer Point No.(ii) in the negative.
21. Point No.(iii): In view of the above discussion, we pass the following order.
The appeal is dismissed. The judgment and preliminary decree dated 15.12.2016 passed in O.S. No.117/2013 by the learned Senior Civil Judge, Gokak, is confirmed. However, liberty is granted to the plaintiffs to work out their remedy, if law permits.
No order as to the cost.
Sd JUDGE Sd JUDGE kmv