Karnataka High Court
Basavva W/O Fakkirappa Makanur vs Gurushantavva @ Neelavva on 29 May, 2023
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RFA No. 100226 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 29TH DAY OF MAY, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO. 100226 OF 2015 (PAR)
BETWEEN:
1. SMT BASAVVA W/O. FAKKIRAPPA MAKANUR,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O: KAVALUPETE, KURUBAGERI, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI-581115.
2. GADIGEPPA S/O. SHANKRAPPA HORAKERI,
AGE: 75 YEARS, OCC: AGRICULTURE,
R/O: JOISARAHARALAHALLI, TQ: RANEBENNUR,
Digitally signed
by JAGADISH T
DIST: HAVERI-581115.
R
Location: HIGH
COURT OF
KARNATAKA
Date:
3. BASAPPA S/O. GADIGEPPA HORAKERI,
2023.08.14
16:47:37 +0530 AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: JOISARAHARALAHALLI,
TQ: RANEBENNUR, DIST: HAVERI-581115.
4. HEMAPPA S/O. GADIGEPPA HORAKERI,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: GOKAL INDUSTRY AREA NEAR NEW BUS,
STAND HUBLI, DIST: DHARWAD.
5. NINGAPPA S/O. GADIGEPPA HORAKERI,
AGE: 45 YEARS, OCC: AGRICULTURE,
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RFA No. 100226 of 2015
R/O: JOISARAHARALAHALLI,
TQ: RANEBENNUR, DIST: HAVERI-581115.
6. ISHAPPA S/O. GURUSHIDDAPPA NYAMATI,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: MAKARI, TQ: HIREKERUR,
DIST: HAVERI-581109.
7. KUM SUDHA D/O. ISHAPPA NYAMATI,
AGE: 26 YEARS, OCC: AGRICULTURE,
R/O: MAKARI, TQ: HIREKERUR,
DIST: HAVERI-581109.
8. KUM BHARMAGOUD S/O. ISHAPPA NYAMATI,
AGE: 24 YEARS,OCC: AGRICULTURE,
R/O: MAKARI, TQ: HIREKERUR,
DIST: HAVERI-581109.
9. SMT CHANNAMMA W/O. ASHOKA
GIDDAPPAGOUDAR, AGE: 41 YEARS,
OCC: AGRICULTURE, R/O: HADRIHALLI,
TQ: HIREKERUR, DIST: HAVERI-581109.
10. SMT LALITAVVA W/O. ASHOKA KENCHOTI,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O: KAKIGALLI, KURUBAGERI,
NOW AT R/O: JOISARAHARALAHALLI,
TQ: RANEBENNUR, DIST: HAVERI-581115.
11. KUM UMA W/O. GADIGEPPA HORAKERI,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: JOISARAHARALAHALLI,
TQ: RANEBENNUR, DIST: HAVERI-581115.
12. SMT NEELAVVA W/O. KURUVATEPPA KENCHOTI,
AGE: 75 YEARS,OCC: AGRICULTURE,
R/O: KAKIGALLI, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI-581115.
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RFA No. 100226 of 2015
13. MALLESHAPPA S/O. KURUVATEPPA KENCHOTI,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: KAKIGALLI, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI-581115.
14. ASHOKA S/O. KURUVATEPPA KENCHOTI,
A/F GURUSHANTAPPA KENCHOTI,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: KAKIGALLI, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI-581115.
15. VIRUPAKSHAPA S/O. KURUVATEPPA KENCHOTI,
A/F MALAKAPA KENCHOTI,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: KAKIGALLI, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI-581115.
16. SMT SUMITRA (SUMAKKA)
W/O. SHIVAPPA KAKOL, AGE: 54 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KAKIGALLI, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI-581115,
17. SMT PADMAVVA W/O. HOLIYAPPA KAKOL,
AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
R/O: KAKIGALLI, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI-581115.
18. SMT CHANABASAVVA S/O. ASHOKA HANGAL,
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
R/O: DEVIHOSUR, TQ & DIST: HAVERI-581117.
19. SMT JAYAVVA W/O. SIDDAPPA HANCHIMANI,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: MUDENUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
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RFA No. 100226 of 2015
20. GULAPPA S/O. SHIVAPPA NARASAGONDRA,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: DEVARAGUDDA ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI-581115.
21. SMT DRAXYANAMMA W/O. BASAVANEPPA
KAKOL, AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: DEVARAGUDDA ROAD,
RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
22. SHIVAPPA S/O. GULAPPA NARASAGONDRA,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: DEVARAGUDDA ROAD,
RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
23. UMESH S/O. GULLAPPA NARASAGONDARA,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: DEVARAGUDDA ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI-581115.
24. JYOTI W/O. UJJANAGOUDA KEHALIYAPPANAVAR,
AGE: 68 YEARS, OCC: HOUSEHOLD WORK,
R/O: GUDUGERI, TQ: KUNDGOL,
DIST: DHARWAD-580001.
25. AJJAPPA S/O. VIRUPAXAPPA BIDARI,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: C/O: GULAPPA NARASAGONDRA,
DEVARAGUDDA ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI-581115.
26. SHIVAPPA S/O. AJJAPPA BIDARI,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: CHIKAKURUVATTI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
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RFA No. 100226 of 2015
27. MALLIKARJUN S/O. SHIVAPPA BIDARI,
AGE: 32 YEARS, OCC: JOB,
R/O: R.P.C. LAYOUT, HAMPINAGAR,
G.N.IYER ROAD, H.NO.106/B, BENGALURU-40.
28. PRAKASH S/O. SHIVAPPA MADDER,
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O: CHIKAKURUVATTI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
29. SHILPA ALIAS SHAILA W/O. KENCHANAGOUDA
RANGANAGOUDRA,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O: GUDUGERI, TQ: KUNDGOL,
DIST: DHARWAD, NOW AT C/O: VIRUPAXAPP
(MUDDER) BIDARI, R/O: CHIKAKURUVATTI,
TQ: RANEBENNUR, DIST: HAVERI-581115.
30. BASAVARAJ S/O. KARABASAPPA KAKOL,
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O:KAKIGALLI, KURUBAGERI, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI-581115.
...APPELLANTS
(BY SRI. AVINASH BANAKAR, ADVOCATE)
AND:
1. SMT GURUSHANTAVVA @ NEELAVVA
W/O. VIRAPPA DYAVAKKALAVAR,
AGE: 67 YEARS, OCC: HOUSEHOLD WORK,
R/O: RATTIHALLI, TQ: HIREKERUR,
DIST: HAVERI-581109
2. MALIYAPPA S/O. GADIGEPPA HORAKERI,
AGE: 42 YEARS, OCC: AGRICULTUR3E,
R/O: JOISARAHARLAHALLI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
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RFA No. 100226 of 2015
3. SMT. SIDDAVVA @ GIRIJAVVA W/O. SANGAPPA
BANAKAR,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: JOISARAHARLAHALLI,
TQ: RANEBENNUR,DIST: HAVERI-581115.
4. SHIVAKUMAR S/O. JETTEPPA HORAKERI,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: JOISARAHARLAHALLI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
5. RAMAPPA S/O. JETEPPA HORAKERI,
AGE: 37 YEARS, OCC: AGRICULTUR3E,
R/O: JOISARAHARLAHALLI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
6. GURUSHANTAPPA S/O. JETTEPPA HORAKERI,
AGE: 35 YEARS, OCC: AGRICULTUR3E,
R/O: JOISARAHARLAHALLI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
7. BASAPPA S/O. MAHADEVAPPA MALLADAD,
AGE: 55 YEARS, OCC: AGRICULTUR3E,
R/O: ANUR, TQ: BYADGI, DIST: HAVERI-581106.
8. SMT DEVIRAVVA W/O. MAHADEVAPPA
MALLADAD,
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: ANUR, TQ: BYADGI, DIST: HAVERI-581106.
9. MAHADEVAPPA S/O.VEERABASAPPA
HARNAHALLI, AGE: 59 YEARS, OCC:
AGRICULTURE, R/O: HIREMADAPUR,
TQ: HIREKERUR, DIST: HAVERI-581109.
10. VEERAPPA S/O. VEERABASAPPA HARNAHALLI,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: HIREMADAPUR, TQ: HIREKERUR,
DIST: HAVERI-581109.
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RFA No. 100226 of 2015
11. SHANKRAPPA S/O. VEERABASAPPA HARNAHALLI,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: HIREMADAPUR, TQ: HIREKERUR,
DIST: HAVERI-581109.
12. SMT LALITAVVA W/O. JETTEPPA HORAKERI,
AGE: 52 YEARS, OCC: AGRICULTUR3E,
R/O: JOISARAHARALAHALLI,
TQ: RANEBENNUR, DIST: HAVERI-581115.
13. SMT MURIGEVVA W/O. PARAMESHAPPA
SOMANAHALLI,
AGE: 45 YEARS, OCC: AGRICULTUR3E,
R/O: KUNCHUR, TQ: HIREKERUR,
DIST: HAVERI-581109.
14. SANGAPPA S/O. GULAPPA MUDDAPPALAVAR
@ BANAKAR,
AGE: 71 YEARS, OCC: AGRICULTURE,
R/O: JOISARAHARALAHALLI,
TQ: RANEBENNUR, DIST: HAVERI-581115.
15. SHIVAPPA S/O. CHANDRAPPA KAKOL
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: KAKIGALLI, KURUBAGERI,
RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
16. HOLIYAPPA S/O. CHANABALAPPA KAKOL
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: KAKIGALLI, KURUBAGERI, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI-581115.
17. GUTTEPPA S/O. MARDEPPA GADER,
AGE:MAJOR, OCC:AGRL,
R/O:KALDARKATTI HONDA, KURUBAGERI,
RANEBENNUR, TQ:RANEBENNUR
DIST:HAVERI-581115.
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RFA No. 100226 of 2015
18. KANNAPPA S/O. MARDEPPA GADER,
AGE:MAJOR, OCC:AGRL, R/O:KALDARKATTI
HONDA, KURUBAGERI, RANEBENNUR,
TQ:RANEBENNUR, DIST:HAVERI-581115.
19. BEERAPPA S/O. MARDEPPA GADER,
AGE:MAJOR, OCC:AGRL
R/O:KALDARKATTI HONDA, KURUBAGERI,
RANEBENNUR, TQ:RANEBENNUR,
DIST:HAVERI-581115.
20. MANJAPPA S/O. MARDEPPA GADER,
AGE:MAJOR, OCC:AGRL, R/O:KALDARKATTI
HONDA, KURUBAGERI, RANEBENNUR,
TQ:RANEBENNUR, DIST:HAVERI-581115.
21. CHOLAPPA S/O. MARDEPPA GADER,
AGE:MAJOR, OCC:AGRL,
R/O:KALDARKATTI HONDA, KURUBAGERI,
RANEBENNUR, TQ:RANEBENNUR,
DIST:HAVERI-581115.
22. CHOLAPPA S/O. BEERAPPA GADER,
AGE:MAJOR, OCC:AGRL, R/O:KALDARKATTI
HONDA, KURUBAGERI, RANEBENNUR,
TQ:RANEBENNUR, DIST:HAVERI-581115.
23. BASAPPA S/O. BEERAPPA GADER,
AGE:MAJOR, OCC:AGRL,
R/O:KALDARKATTI HONDA, KURUBAGERI,
RANEBENNUR, TQ:RANEBENNUR,
DIST:HAVERI-581115.
24. NAGAPPA S/O. BEERAPPA GADER,
AGE:MAJOR, OCC:AGRL,
R/O:KALDARKATTI HONDA, KURUBAGERI,
RANEBENNUR, TQ:RANEBENNUR,
DIST:HAVERI-581115.
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RFA No. 100226 of 2015
25. SMT.NAGAVVA W/O. HANUMANTHAPPA GADER,
AGE:MAJOR, OCC:HOUSEHOLD WORK,
R/O:RANEBENNUR, TQ:RANEBENNUR,
DIST:HAVERI-581115.
26. HONNAPPA S/O. HANUMANTHAPPA GADER,
AGE:MAJOR, OCC:AGRL,
R/O:KALDARKATTI HONDA, KURUBAGERI,
RANEBENNUR, TQ:RANEBENNUR,
DIST:HAVERI-581115.
27. KARIYAPPA S/O. KANNAPPA GADER,
AGE:MAJOR, OCC:AGRL,
R/O:KALDARKATTI HONDA, KURUBAGERI,
RANEBENNUR, TQ:RANEBENNUR,
DIST:HAVERI-581115.
...RESPONDENTS
(BY SRI DINESH M KULKARNI ADVOCATE FOR R1;
SRI F.V. PATIL ADVOCATE FOR R3, R14 (A TO B).
R2 APPEAL STAND DISMISSED. R4,7,8,9,10(C),
11,16,17 TO R27 SERVED UNREPRESENTED.
R5,R6,R12 AND R13 HELD SUFFICIENT.
R10,R14,R15 APPEAL IS OBATED. R10(A),10(B) AND
R10 9(D) DISMISSED)
THIS REGULAR FIRST APPEAL FILED UNDER
SECTION 96 OF THE CODE OF THE CIVIL PROCEDURE R/W
ORDER 41 OF THE CODE OF THE CIVIL PROCEDURE
PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE
DATED 10-08-2015 PASSED BY THE COURT OF PRL
SENIOR CIVIL JUDGE, RANEBENNUR IN O.S.NO.52/2008
AND THE SUIT OF THE PLAINTIFF MAY KINDLY BE
DISMISSED, IN THE INTEREST OF JUSTICE AND EQUITY.
PLEASE TO PASS ANY OTHER ORDER OR DIRECTION AS
THIS HON'BLE COURT DEEMS FIT UNDER THESE
CIRCUMSTANCES.
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RFA No. 100226 of 2015
THIS APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, VENKATESH NAIK T. J., DELIVERED THE
FOLLOWING:
JUDGMENT
This Regular First Appeal is filed by defendants challenging the Judgment and decree dated 10.08.2015 passed by the Principal Senior Civil Judge, Ranebennur in O.S.No.52/2008, wherein, the suit filed by the plaintiff for partition and separate possession of his share, in the suit schedule properties, decreed in part.
2. For the sake of convenience, parties are referred to as per their ranks before the trial Court.
3. Appellant Nos.1 to 30 are defendant Nos.1 to 5, 7(a) to 7(c), 8 to 10, 13 to 20, 30(a) 1 to 30 (a) 5, 30(c), 32(d), 32(e), 32(f), 32(g) and 32(h). Respondent Nos.1 to 27 are plaintiff, defendant Nos.6, 12, 21(a), 21(b), 21(c), 22 to 31 and 33 to 43.
4. The brief facts leading rise to the filing of this appeal are as under:
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The plaintiff Smt. Gurushantawwa @ Neelawwa filed a suit for partition and separate possession of her share in the suit schedule properties and for consequential relief of permanent injunction against defendant Nos.14 to 16 from creating any charge or alienating schedule - B and C properties till the partition is effected and also for declaration, to declare that factum of adoption alleged to have been performed on 28.08.1985 is bogus and alleged deed registered on 23.09.1985 is invalid and concocted as against defendant No.16.
5. It is the case of plaintiff that, the suit schedule properties are the joint family properties of plaintiff and defendants. The plaintiff is the only heir to one deceased Malakappa S/o. Basappa. The original propositus Basappa died on 12.11.1947 and his wife Bharamawwa died on 08.12.1981, they left three sons by name Gurushantappa, Malakappa and Kuruvatteppa and four daughters by name Neelawwa, Mallawwa, Huchchawwa and Karabasawwa. The wives of
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RFA No. 100226 of 2015Gurushantappa and Malakappa are no more and the plaintiff is the daughter of Malakappa, defendant No.13 is the wife of Gurushantappa and defendant Nos.14 to 20 are their children. Schedule - A is genealogy furnished by plaintiff. The subject matter of the litigation are schedule - B to D properties. Schedule - B properties are situated at Ranebennur consisting of five landed properties bearing Sy. No.302, 323, 317/2, 382 and 85/4. Schedule C property is also said to be consisting of ten house properties and open sites bearing CTS Nos. 2982, 2981/B and 358, 3541, 383/1 to 383/7. Similarly, schedule D of the plaint consists of movable such as 75 tolas of gold, 3 kgs of silver, one tractor/trailer, food grains like 60 bags of jowar, 50 quintals of cotton, 20 bags of hurali crop, agricultural implements, 9 mango trees, 6 tamarind trees and 22 years old neem trees.
6. It is further stated that item Nos.1 and 2 of suit schedule - B properties were left by the propositus Basappa, whereas item No.3 of suit Schedule - B property
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RFA No. 100226 of 2015was purchased on 16-12-1949 under a registered sale deed in the name of his elder son deceased Gurushantappa and mutation entry was certified on 07.04.1949 and item No.5 of suit Schedule - B property has been purchased by joint family on 14.06.1972 under a registered sale deed in the name of Kuruvatteppa and mutation was effected accordingly on 15-06-1972 and item No.4 of suit Schedule - B property was also purchased by the joint family under a registered sale deed dated 09.05.1960 in the name of deceased Gurushantappa and accordingly the mutation was effected on 27.06.1960. It is further stated that item Nos.3 to 5 of suit Schedule - B properties have been purchased out of the income of joint family of the plaintiff and her elder heirs, as such item Nos.1 to 5 of suit Schedule - B properties are an ancestral properties of the joint family.
7. Whereas, item Nos.1 to 3 of suit Schedule - C properties are an open space consisting residential house and out of them, item No.4 to 10 of suit Schedule -
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RFA No. 100226 of 2015C properties are residential red tiled houses and have been used for let out on a rental basis on payment of Rs.1,000/- each.
8. It is further contended that suit Schedule - D properties are movable properties are also existing till today. Suit Schedule - B, C and D properties are ancestral joint family properties and no partition has taken place in between deceased sons of propositus or in between the plaintiff and legal heirs of the deceased sons of Basappa.
9. It is further contended that the deceased Kuruvatteppa was the only educated person in the family and was intelligent and business minded person and also had an influence in the family and as such he started managing the affairs of the joint family as manager after the death of the propositus, whereas the parents of the plaintiff were said to be innocent and illiterate and were always forced to engage in agricultural work and as such they were said to be unaware of any records pertaining to
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RFA No. 100226 of 2015the suit properties and taking advantage of this situation and the innocence and illiteracy of the parents of the plaintiff, deceased Kuruvatteppa by playing fraud on them, got created a bogus adoption deed and got it registered on 23-09-1985 purporting to be an adoption of his son defendant No.16 (Virupakshappa) by the parents of the plaintiff, infact, the parents of plaintiff never taken defendant No.16 or anybody in adoption, as the plaintiff is alive and no such partition has ever taken place and on the strength of the alleged adoption deed, defendant Nos. 14 to 16 by colluding with each other got created bogus mutation entries by getting entered their names to the records of Schedule - B and C properties, which never constituted any title in their favour with respect to the suit Schedule properties. It is further contended that after the death of Kuruvattappa, defendant Nos. 14 to 16 started controlling the entire joint family and with an ill-motive to grab the properties of the plaintiff and without any legal necessity executed bogus sale deed in favour of defendant Nos.33 to 43 in respect of item No.5 of suit Schedule - B
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RFA No. 100226 of 2015property behind the back of plaintiff, and said sale deed is also not binding on her.
10. The plaintiff further contended that defendant Nos.14 to 16 started neglecting her to grab her share in the suit Schedule properties and they were prevented her from visiting the suit Schedule properties and illegally asserted that defendant No.16 is the adoptive son of the parents of the plaintiff and also regarding the change of khatas and they have also denied the share of the plaintiff in the suit schedule properties. Hence, the cause of action arose for the plaintiff to file a suit for partition in respect of the suit Schedule properties. Hence, she filed suit seeking partition of her 1/3rd share in the suit schedule properties.
11. Though, the trial Court issued summons to defendants 1, 2, 4, 6, 8 to 11, 21, 24, 25, 27, 32(a) to 32(f), 41 to 43 and 57, they remained absent and hence they were placed ex-parte. Whereas defendants No.12
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RFA No. 100226 of 2015filed her written statement by admitting plaint averments and also claim of plaintiff, she has admitted genealogy furnished by plaintiff and its correctness. However, she has questioned the validity of adoption deed dated 23.09.1985 executed in favor of defendant Nos.15 and 16.
12. Defendant No.29 also filed his written statement by admitting the claim of the plaintiff and has sought for carving out his share out of 1/10th share of his mother deceased Mallavva. Defendant Nos.7(a) to 7(c) have also filed their written statement through their guardian defendant No.7(a) by admitting the claim of the plaintiff and also questioning the validity of the adoption deed dated 23.09.1985 and have also sought for carving out their share in the 1/12th share of deceased Mallavva. Defendant No.39 has also sought for carving out his share in item No.5 of Schedule - B property out of the share of 14th defendant and has also adopted the contents of the written statement filed by defendant Nos.14 to 16 and has questioned the claim of the plaintiff on the ground that it
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RFA No. 100226 of 2015is not maintainable as the plaintiff has not challenged the sale deed of these defendants dated 05.05.2000 within three years from the date of its execution and therefore defendant No. 16 has contended that, he is the bonafide purchaser of item No5 of Schedule - B property. The contents of his written statement have been adopted by defendants No.32 to 38 and 40 to 43 by filing a memo to that effect. The claim of the plaintiff of declaration is also questioned on the grounds that it is barred by limitation. For these reasons defendant No.16 has sought for dismissal of the suit.
13. On the basis of the above pleadings, the trial Court framed the following issues:
ISSUES
1. Whether plaintiff proves that plaintiff and defendants 1 to 32 constitute joint family?
2. Whether plaintiff proves that suit schedule properties are joint family properties?
3. Whether plaintiff proves that adoption deed dated:28-08-85 is illegal invalid and concocted?
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RFA No. 100226 of 2015
4. Whether defendant No.16 proves that suit of the plaintiff is time barred?
5. Whether defendant No.12 and 29 proves that they are also entitled for share in the suit schedule properties.
6. Whether plaintiff is entitled for any share in the suit schedule properties?
7. what order or decree?
ADDITIONAL ISSUES DATED 20.01.2015
1. Whether defendant Nos.33 to 38 and 40 to 43 proves that the bonafide purchasers of suit schedule B item No.(5) property for valuable consideration?
14. In order to substantiate the case of plaintiff, she examined herself as PW.1, and she also examined Sri. Jattappa Hadimani as PW.2, got marked as many as 41 documents as Ex.P.1 to Ex.P.41. To rebut the claim of plaintiff, defendants No.12, 29, 16, 15, 43 and 31 have been examined as DW.1, 4 to 8 respectively and two independent witnesses viz., Sri. Karibasappa Makanur and Sri. Shankarappa Byadagi have been examined as DW.2 and D.W.3, one bond writer Sri.Mallari Rao H. Kulkarni examined on oath as Dw.9 and defendants are relied upon as many as 50 documents as Ex.D.1 to Ex.D.50.
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RFA No. 100226 of 2015
15. Based on the above pleadings, issues and evidence on record, the trial Court answered issue No.1, 2, additional issue No.1 in affirmative, issue No.3 in negative, issue No.4 answered partly in affirmative with regard to the relief of declaration, issue No.5 answered partly in affirmative only to an extent of share of defendant No.12 and issue No.6 partly in affirmative and the trial Court held that, plaintiff has proved herself and defendants No.1 to 32 constitute joint family and suit schedule properties are joint family properties. The trial Court held that, plaintiff failed to prove that adoption deed dated 28.08.1985 is illegal, invalid and concocted. The trial Court also held that defendant No.16 failed to prove that suit of the plaintiff is time barred, however it has observed that, suit of the plaintiff is time barred only with regard to the relief of declaration. The trial Court also observed that defendant No.19 failed to prove that he is also entitled for share in the suit schedule properties, but it has observed that defendant No.12 also entitled for share in the suit schedule properties. So far as issue No.6 is concerned, the
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RFA No. 100226 of 2015trial Court has held that in view of the findings given on all the preceding paras of the judgment it was proved that in the available suit properties only four shares shall have to be carved out i.e. the shares of deceased Gurushantapp, Malkappa, Kuruvatteppa and deceased defendant No.32 Karabasavva who are held to be legally entitled to their respective shares in the family properties. Thus, in the 1/4th share of deceased Karabasavva, defendant Nos.32(a)(1) to 32(a)(5), 32(b) to (h) are entitled to have the share of deceased Karabasavva. Hence, defendant No.32(b) to (h) would be entitled to 1/32nd share each and defendant 32(a) (1) to 32(a)(5) would be jointly entitled to the 1/32nd share, ie., each would be entitled to 1/160th share. Similarly in the 1/4th share of deceased Gurushanthappa defendant No.12, defendant No.15(DW6), defendant No.1, defendant No.11, deceased Mallavva are equally entitled to have their 1/24th share each. As Mallavva is no more, her share would devolve upon defendant Nos.2 to 10 at the ratio of 1/216th share each. Similarly, in the 1/4th share of deceased Malakappa the
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RFA No. 100226 of 2015present plaintiff as well as defendant No.16 (DW5) are equally entitled to their 1/8th share each. In the remaining 1/4th share of deceased Kuruvatteppa defendant Nos.13, 14, 17 to 20 are entitled to claim their respective 1/24th share each.
16. Accordingly, the trial Court partly decreed the suit of plaintiff against defendants in respect of suit Schedule - B to D properties and it is ordered and decreed that, the plaintiff and defendant No.16 each are held entitled to their 1/8th share, defendant Nos.1, 11, 12 and 15 each are entitled to their 1/24th share an defendant Nos.2 to 10 each are entitled to their 1/216th share defendant Nos.32(a)(1) to 32(a)(5) each are entitled to 1/160th share and defendant Nos.13, 14 and 17 to 20 are entitled to 1/24th share each in suit schedule 'B' item Nos.1 to 4 properties, Schedule 'C' item Nos.1 to 10 properties and in Schedule 'D' item Nos.3 to 6 and 10 properties.
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RFA No. 100226 of 2015
17. The trial Court also held that defendants No.33 to 38 and 40 to 43 proved that they are bonafiede purchasers of item No.5 of suit Schedule - B property for valuable consideration. Hence, the trial Court decreed the suit of the plaintiff in part in respect of schedule - B to D properties.
18. Contentions of the appellant:
Aggrieved by the Judgment and decree passed by the trial Court, defendants No.1, 2 to 5, 7(a) to 7(c), 8 to 10, 13 to 20, 32(a) to 32(h) have preferred this appeal, contending that the Judgment and decree of trial Court is arbitrary, illegal and against to the evidence on record.
19. The learned counsel Sri. Avinash Banakar, for appellants submitted that, the trial Court ought to have dismissed the suit of the plaintiff since she has born in the year 1948. In view of amendment Act of 2005, to Hindu Succession Act, 1956, if female born prior to 1956 is not entitled for share in joint family property and is not
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RFA No. 100226 of 2015treated as coparcener along with male member. Further the defendants have clearly established before the trial Court regarding the age of the plaintiff by producing the birth certificate.
20. The counsel further submitted that, the trial Court without looking to the documents produced by the parties has decreed the suit of the plaintiff. Since the adopted father of defendant No.16 has surrendered his part of share in suit schedule - B and C properties in favour of defendant No.16 in the year 1988 and to that effect Mutation Entry No.1662 has been effected. In view of the same defendant No.16 has become absolute owner of suit schedule properties and at the same time, plaintiff was not having any birth right. Further, the father of plaintiff died on 28.11.1991, at that time, he was not having any properties in his name, hence, suit of the plaintiff is not maintainable. Learned counsel further contended that, the trial court ought to have dismissed the suit of the plaintiff, since she has not filed suit within 12
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RFA No. 100226 of 2015years from the date of surrender, as plaintiff has taken her share by way of gold at the time of surrender of her share, she kept quite and even kept quite after the death of her father in the year 1991 and she did not obstruct the possession and enjoyment of defendant No.16. Under these circumstances, plaintiff she is not entitled for equal share in the suit schedule properties. Further, the amendment to Hindu Succession Act, 2005 is not applicable to plaintiff, since the old law is applicable and hence plaintiff is entitle to share in her father's properties.
21. The counsel further submitted that, the suit of plaintiff is not maintainable, since the plaintiff has filed suit after lapse of 20 years from the date of mutation entries. The trial Court ought not to have granted share on par with defendant No.16, in view of the law laid down by the Supreme Court in Sheela Devi Vs. Lal Chand reported in 2006(8) SCC 581.
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RFA No. 100226 of 2015
22. It is submitted that the trial Court was not justified in decreeing the suit of the plaintiff when there is no coparcenary property existing as on 09.09.2005 and as on the date of filing of the suit in view of the law laid down by the full bench of Bombay High Court in the case of B.S.Bhandari Vs. O.S.Bhandari reported in AIR 2014 Bom 151. It is submitted that the trial Court while decreeing the suit of the plaintiff not gone into the crux of the law properly, since once a partition in the sense of division of right, title or status is proved or admitted; the presumption is that all joint property was partitioned or divided. Hence, the impugned judgment and decree of the trial court is liable to be set-aside.
23. On the other hand, the learned counsel for respondents submitted that the judgment and decree passed by the trial Court is in accordance with law. The trial Court has considered pleadings, evidence of the parties and documents relied upon them, has rightly
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RFA No. 100226 of 2015passed the Judgment and decree and hence, it do not requires any interference of this Court.
24. Heard and perused the records and considered the submissions of the learned counsel for the parties.
25. The points that would arise for our consideration are;
i. Whether the plaintiff proves that the plaintiff and defendants No.1 to 32 are the members of the Hindu undevided joint family and further proves that suit properties are joint family properties of plaintiff and defendants No.1 to 32 ? ii. Whether the plaintiff proves that adoption deed dated 28.08.1985 is illegal, invalid and concocted ?
iii. Whether defendant No.16 proved that suit of the plaintiff is barred by time and whether
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RFA No. 100226 of 2015defendant Nos.12 and 29 proves that they are also entitled for suit Schedule properties. iv. Whether the appellants have made out any grounds for intereference with the impugned judgment and decree ?
v. What order ?
26. Point No.i and ii: Since point No.1 and 2 are interlinked they are taken together for common discussion to avoid repetition of facts and evidence.
27. In order to prove the case of plaintiff, she has been examined as PW.1 and in her evidence she has reiterated the averments made in the plaint, she also got examined Sri. Jettappa Hadimani, an independent witness as PW.2, who also corroborated the oral testimony of PW.1. The plaintiff is relied upon Ex.P.1 to Ex.P.10, the RTC extracts in respect of suit lands, Ex.P.11 to Ex.P.15, the CTS extracts and assessment extracts in respect of
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RFA No. 100226 of 2015suit schedule house properties and open sites. Ex.P.16 to Ex.P.30 are the mutation entries. Ex.P.31 to Ex.P.39 are the death extract of deceased Bharamappa, Malakappa, Tirakamma, Mallamma, Karibasavva, Huchchamma, Nagappa and Mahadevappa and Ex.P.40 is the birth extract of Gurushantawwa and Ex.P.41 is the adoption deed.
28. In order to rebut the claim of plaintiff, defendants No.12 and 29 have been examined as DW.1 and DW.4 respectively, they also examined 2 independent witnesses Sri. Karabasappa Maganur and Sri. Shankarappa Byadagi as DW.2 and DW.3, defendants No.16, 15, 43 and 31 have been examined as DW.4 to DW.8 respectively and one bond writer has been examined as DW.9. In support of their defence, they relied upon Ex.D.1 and Ex.D.2 photographs of the adoption ceremony, Ex.D.3 to Ex.D.9 are the mutation entries in respect of suit Schedule properties, Ex.D.10 and 11 are the property extracts, Ex.D.12 to 15 are the RTC extracts, Ex.D.16 is the birth
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RFA No. 100226 of 2015extract of Siddamma (defendant No.12). Ex.D17 to 22 are the death extract of deceased Sri. Gurushantappa, defendant No.12 (Siddamma), deceased Sri. Kuruvattappa, deceased Malakappa, deceased Tirakamma and deceased Mallawwa. Ex.D.23 is the birth extract of Sri. Umesh. Ex.D.24 is the copy of adoption deed. Ex.D.25 is the cast and birth certificate of DW.6 - Sri. Ashok Kenchoti. Ex.D.26 to 28 are the orders of revenue Courts, Ex.D.29 is the study certificate, Ex.D.30 to 33 are the RTC extract, Ex.D.34 is the property registered extract. Ex.D.35 is the birth extract of Ramesh. Ex.D.36 and 37 are the photographs showing the adoption ceremony of DW.5 and 6. Ex.D.38 to 43 are caste and date of birth certificates issued by the School authority in respect of deceased Gurushantawwa, Basawwa, Mahadevappa, Mallawwa, Siddawwa and Karibasawwa. Ex.D.44 is the adoption deed of DW.5 Veerupakshappa. Ex.D.45 is the copy of complaint lodged by defendant No.12 against DW.6 under the Domestic Violence Act. Ex.D.46 is the marriage invitation card of DW.6. Ex.D.47 is the adoption
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RFA No. 100226 of 2015deed of DW.6 and Ex.D.48 to 50 are the copies of sale deeds of defendant Nos.33 to 38 and 40 to 43.
29. In the light of the above evidence and materials on record, the counsel for appellant contended that, the suit schedule properties are the joint family properties of both parties and remained un-divided between the parties and there was no partition in the schedule properties by meets and bounds till the date of suit. The counsel further contended that, the possession of plaintiff over the schedule properties would be constructive in nature. Hence, possession of one co-owner would be the possession of other co-owner, which is the well established possession of law.
30. On perusal of the genealogy produced by the plaintiff in this case, one Sri. Basappa is original propositus, who died on 12.11.1947, his wife Bharamavva died on 08.12.1981. Sri. Basappa and Bharamavva have three sons by name Gurushantappa (his legal
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RFA No. 100226 of 2015representatives are defendants No.1 to 12) Malakappa (his legal representatives is plaintiff) and Kuruvatteppa (his legal representatives are defendants No.14 to 20) and four daughters by name Neelawwa (her legal representatives are defendants No.21 to 23), Mallawwa (her legal representatives are defendants No.13 and 24 to 29), Huchchawwa (her legal representatives are defendants No.30 and 31)and Karabasawwa (defendant No.32).
31. Since, the second daughter Mallavva died in the year 2007, her legal heirs are representing her as defendant Nos. 3 to 10. However the records reveal that these defendant Nos.3 to 10 though appeared before the court through their counsel, but they have not filed any written statements. As defendant No.7 also died during the pendency of the proceedings her legal hairs are brought on record as defendant Nos.7(a) to 7(c) and defendant No.7(a) filed his written statement for himself and on behalf of defendant No.7(b) and 7(c) and he has
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RFA No. 100226 of 2015also claimed the share of his deceased grandmother Mallavva in the suit schedule properties.
32. On perusal of cause title of the plaint, defendant No.1 was aged 65 years on the date of the suit, defendant No.7 was 41 years, defendant No.8 was 34 years, defendant Nos.9 and 10 were 30 and 28 years of age respectively, whereas deceased Mallavva died in the year 2007 i.e., after coming into force of the Amended Act of 2005. Similarly, defendant Nos.11 and 12 are also shown to be 60 and 57 years of age respectively and both are alive as on the date of coming into force of the Amendment Act of 2005, certainly all these daughters of deceased Gurushanthappa would be entitled to their respective shares in the share of Gurushanthappa.
33. So for as the claim of defendant No.29 i.e., DW.4, he also claimed his share in the share of his mother Mallavva, who was one of the daughter of the propositus. Admittedly, his sister defendant No.13 is none other than
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RFA No. 100226 of 2015the genetic mother of DW.5 and DW.6 Neelavva and defendants No.24 to 28 are the children of his another sister deceased Gouravva, who died in the year 1986 as per their own case. However, the records reveal that except DW.4 none of these defendant No.24 to 28 or defendant No.13 have contested the matter. Thus, DW.4 is admittedly claiming his share through his mother deceased Mallavva.
34. Admittedly, DW.4 is claiming his share derived from his deceased mother hence, his mother if she alive, would have got her share. Therefore, DW.4 is also entitled for share through his deceased mother. Therefore, as regards the claim of DW.4 (defendant No.
29) his claim can be entertained.
35. So far as the other daughter of the propositus Neelavva i.e., the grandmother of defendant Nos.2, 21, 23 and the deceased Karabasavva is concerned, she is also shown to be dead 15 years back
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RFA No. 100226 of 2015prior to the date of institution of this suit in the year 2008. Therefore, she also be held entitled to share in the suit properties. Consequently, defendant Nos.2, 21 to 23 who claims to be her legal heirs, also be entitled for the share in the suit properties.
36. As regards, the other daughter of the propositus deceased Huchhava, she is also shown to have passed away on 14.07.1980, which is not disputed by any parties. Defendant Nos.30 and 31 who claim to be her legal heirs, are also be entitled to claim their share in the suit properties.
37. As regards the last daughter of the propositus Karabasava, admittedly, she died during the pendency of the proceeding and her legal heirs are brought on record as defendant Nos.32(a) to 32(h) and even defendant No.32(a) died during the pendency of the suit and her legal heirs are brought on record as defendant Nos.32(a)(1) to 32(a)(5). Since Karabasavva was also
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RFA No. 100226 of 2015alive as on the date of coming into force of the amended Act of 2005, these legal heirs are certainly entitled to claim her share in the suit properties which are available in the family.
38. The counsel for appellant has taken contention that, since the plaintiff born prior to 1948, considering this aspect, the trial Court ought to have dismissed the suit of the plaintiff. On the other hand, the counsel for respondents submitted that, in view of Amendment Act of 2005 to Hindu Succession Act, 1956 daughter is also entitled for share as that of a son in the joint family property. In case of Vineeta Sharma Vs. Rakesh Sharma reported in (2020) 9 SCC 1 the Hon'ble Apex Court held as under;
"... Section 6 deals with devolution of interest in coparcenary property of a joint Hindu family governed by the Mitakshara law. The originally enacted provision of Section 6 excluded the rule of succession concerning Mitakshara coparcenary property. It provided the interest of a coparcener male Hindu who
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died after the commencement of Act of 1956, shall be governed by survivorship upon the surviving members of the coparcenary. The exception was provided that if the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative, the interest of such coparcener shall devolve by testamentary or intestate succession, as the case may be, in order to ascertain the share of deceased coparcener, the partition has to be deemed before his death. Explanation II disentitled the separated person to make any claim in case of intestate succession."
39. In the said decision, the Hon'ble Supreme Court has concluded as under:
"Resultantly, we answer the reference as under:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
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(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class - I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956,
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a plea of oral partition cannot be accepted as the statutory recognized mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court.
However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.
We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months.
In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash V. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision. Let the matters be
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RFA No. 100226 of 2015placed before appropriate Bench for decision on merits."
(Emphasis supplied)
40. In view of the principles laid down by the Hon'ble Supreme Court in Vineeta Sharm's case that the statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary and the fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class - I as specified in the Schedule to the Act of 1956 or male relative of such female and the provisions of the substituted Section 6 are required to be given full effect and notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
41. On perusal of the pleadings, issues, oral and documentary evidence, it appears that, along with
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RFA No. 100226 of 2015plaintiffs, daughters of original propositus are also entitled for share in the suit properties. In the available suit properties, only four shares shall have to be carved out i.e., the shares of deceased Gurushantappa, Malkappa, Kurvatteppa and deceased defendant No.32 Karabasavva who are now held to be legally entitled to their respective shares in the family properties. Thus, in the 1/4th share of deceased Karabasavva, defendant Nos.32(a)(1) to 32(a)(5), 32(b) to (h) are entitled to have the share of deceased Karabasavva. Hence, defendants No.32(b) to (h) would be entitled to 1/32nd share each and defendants 32(a)(1) to 32(a)(5) would be jointly entitled to the 1/32nd share, i.e., each would be entitled to 1/160th share. Similarly in the 1/4th share of deceased Gurushantappa defendant No.12, defendant No.15(DW6), defendant No. 1, defendant No.11 and deceased Mallavva are equally entitled to have their 1/24th share each. As Mallavva is no more, her share would devolve upon defendant Nos.2 to 10 at the ratio of 1/216th share each. Similarly, in the 1/4th share of deceased Malkappa the present plaintiff as well as
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RFA No. 100226 of 2015defendant No.16 (DW5) are equally entitled to their 1/8th share each. In the remaining 1/4th share of deceased Kurvatteppa defendant Nos. 13, 14, 17 to 20 are entitled to claim their respective 1/24th share each.
42. Admittedly, in the available suit schedule properties only four shares shall have to be carved out i.e., the shares of deceased Gurushantappa, Malakappa, Kurvatteppa, and deceased defendant No: 32 Smt. Karabasavva, who are know held to be legally entitled to their respective shares in the family properties. Hence, the plaintiff and defendants inherited the properties from deceased Gurushantappa, Malakappa, Kurvatteppa, and deceased defendant No.32 Smt. Karabasavva, and suit schedule properties will be continued to be the ancestral properties.
43. In view of the law laid down by the Hon'ble Apex Court in the case of Vineeta Sharma (supra), we held that the properties inherited by the deceased
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RFA No. 100226 of 2015Gurushantappa, Malakappa, Kurvatteppa, and deceased defendant No: 32 Smt. Karabasavva, are the ancestral and joint family properties. Hence, we answer point No.1 in the affirmative.
44. Point No.2: The plaintiffs have taken contention that, adoption deed dated 28.08.1985 is illegal, invalid and concocted. But, it is the case of defendant Nos.13 to 16 that, since first son of the propositer Gurushantappa had no male issues, his wife deceased Shivamma adopted defendant No.15 in order to continue his heir-ship and similarly second son Malakappa and his wife Tirakamma had no male issues and accordingly, they have also adopted defendant No.16 on 28.08.1985 and got it registered on 23.09.1985. According to defendant Nos.13 to 15, the plaintiffs have purposefully suppressed this fact and has not shown defendant No.15 and 16 as the adopted sons of deceased Gurushantappa and deceased Malakappa, but they wrongly shown them as the
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RFA No. 100226 of 2015sons of Kurvatteppa and Neelavva, who are genetic parents of defendant Nos.15 and 16.
45. In order to prove the adoption defendant Nos.15 and 16 examined DW.5 and DW.6 they have categorically stated that defendant Nos.15 and 16 were given in adoption. The plaintiff except making allegation that adoption deeds are created and concocted one, they have not placed any material. It is established principle of law that mere raising certain allegations in the pleading is not enough, the person who made allegation has to prove by satisfactory evidence. Whereas in the instant case, the plaintiff, DW.1 and DW.4 has failed to prove that adoption deeds are concocted by playing fraud. Therefore in the absence of any such concrete materials disputing the validity of Ex.D.44 and Ex.D47 by the plaintiff or defendant Nos.12 and 29, the only inference, we can inference that DW.5 and 6 are the adoptive sons of deceased Gurushantappa - Shivamma and deceased Malakappa - Tirakamma. Hence, there is no merits in the
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RFA No. 100226 of 2015contention of the plaintiff. Hence, we answer point No.2 in the negative.
46. Point No.3: So far as limitation is concerned, defendant No.16 has taken contention that plaintiff has filed a suit for partition and plaintiff is not in possession of the suit Schedule property since long time. Hence, she cannot maintain the suit for partition. Admittedly, plaintiff is also a coparcener and her possession is in constructive nature. Admittedly, in the family of plaintiff and defendants, no partition has been effected in respect of the suit Schedule properties, hence the possession of one co-owner would be the possession of other co-owners. Hence, there is no merits in the contention of defendant No.16. Thus, we answer point No.3 in the negative.
47. Point No.4: In view of the discussion made in point No.1 to 3, the trial Court has rightly granted shares to the plaintiff and the trial Court has passed well
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RFA No. 100226 of 2015reasoned judgment, which do not call for any interference by this Court, hence the appeal filed by the appellants is liable to be dismissed. Accordingly, we answer point No.4 in the negative.
48. Point No.5: In view of the above discussion, the appeal filed by appellants liable to be dismissed. Hence, we proceed to pass the following:
ORDER i. Appeal is dismissed.
ii. The judgment and decree dated
*10.08.2015 passed by the * Prl. Senior Civil
Judge, Ranebennur in *O.S.No.52/2008 is
confirmed.
iii. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
PJ List No.: 1 Sl No.: 6
* CORRECTED VIDE ORDER
DATED 28.07.2023.
SD/-
JUDGE
SD/-
JUDGE