Full Judgment
-1- IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100044 OF 2020 (PAR/POS) BETWEEN:
1. SMT. BASAVVA W/O. RAMAPPA GOUDRA, AGE: 79 YEARS, OCC: HOUSEHOLD WORK, R/O: NEERALAKERI, TQ: AND DIST: BAGALKOT.
2. SMT. RANAGAVVA W/O. YALLAPPA MUGALOLLI, AGE: 59 YEARS, OCC: HOUSEHOLD WORK, R/O: HULAGERI, TQ: AND DIST: BAGALKOT.
3. SMT. TIPPAVVA W/O. SANGAPPA NELAGI, AGE: 57 YEARS, OCC: HOUSEHOLD WORK, R/O: BEVINAMATTI, TQ: AND DIST: BAGALKOT.
4. SMT. RENAVVA W/O. RANGAPPA NAYKAR,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O: NEERALAKERI, TQ: AND DIST: BAGALKOT. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH 5. SRI. PANDAPPA @ PANDURANGA Location: HIGH COURT S/O. RAMAPPA GOUDRA, AGE: 54 YEARS, OF KARNATAKA DHARWAD BENCH OCC: HOUSEHOLD WORK, R/O: NEERALAKERI, TQ: AND DIST: BAGALKOT. … APPELLANTS (BY SRI. M.C. HUKKERI, ADVOCATE) AND:
1. SMT. HANAMAVVA @ PREMAVVA W/O. HANAMANT GOUDRA, AGE: 35 YEARS, OCC: HOUSEHOLD WORK, R/O: NEERALKERI, TQ AND DIST: BAGALKOT. -2-
2. SMT. HANAMAVVA
W/O. BHEEMAPPA NAYAK @ GOUDAR, SINCE DECEASED BY HER LR’S., 2A. RENAWWA W/O RANGAPPA GOUDAR, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, 2B. RAMESH S/O RANGAPPA GOUDAR, AGE: 23 YEARS, OCC: COOLIE, 2C. SAKKUBAI W/O SANJEEVAPPA YANDIGERI, AGE: 21 YEARS, OCC: HOUSEHOLD WORK, ALL ARE R/O: JAMMANAKATTI, TQ: BADAMI, DIST: BAGALKOT. 2D. RENAWWA W/O GOPAL GOUDAR, AGE: 40 YEARS, OCC: HOUSEHOLD WORK, 2E. IRANNA S/O GOPAL GOUDAR, AGE: 22 YEARS, OCC: COOLIE, 2F. VITHAL S/O GOPAL GOUDAR, AGE: 20 YEARS, OCC: COOLIE, ALL ARE R/O: KERAKALMATTI, TQ: BADAMI, DIST: BAGALKOT. … RESPONDENTS (BY SRI. MRUTYUNJAYA S. HALLIKERI, ADVOCATE FOR R1; SRI. S.C. BHUTI, ADVOCATE FOR R2(A TO F)) THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED: 11.11.2019 PASSED IN O.S.NO.80/2016 ON THE FILE OF THE IST ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BAGALKOT, AT BAGALKOT. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT IS DELIVERED THEREIN AS UNDER:
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ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) Though the appeal is listed for admission, but with consent of both the learned counsel appearing for the parties, the matter is taken up for final disposal.
2. This appeal is filed by defendant Nos.1 to 5
challenging the judgment and decree dated 11.11.2019 passed in O.S.No.80/2016 on the file of I Additional Senior Civil Judge and JMFC, Bagalkot1, thereby, the suit filed for partition is decreed by granting ½ share to the plaintiff in suit schedule B properties.
3. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.
4. The plaintiff has filed suit for partition and
separate possession by metes and bounds, claiming ½ (hereinafter referred to as ‘the Trial Court’ for short) -4- share in the suit schedule B property stating the following genealogy: !"#$ % & ' ( ' )* +! ,-. / ' +1 ! ' ' +& .( ' + ( 2 3 + 456!!7 #7! ( 2 3 .
5. The plaintiff has stated that the suit schedule properties are ancestral properties; therefore, prayed to decree the suit.
6. Defendant No.1 has filed the written statement, which is adopted by defendant Nos.2 to 5 and denied the plaint averments. Defendant No.1 has stated that some -5-
properties are ancestral properties and some are self acquired properties. Further, it is contended that land bearing R.S.No.113/7 and 113/8 as per M.E.No.2435 dated 20.03.1994 and as per the order of Land Tribunal, land bearing R.S.No.113/7 has been allotted to the share of husband of defendant No.1. Therefore, prayed to dismiss the suit.
7. Defendant No.6 has filed separate written statement admitting the contents of the plaint averments and also filed counterclaim, claiming her 1/3rd share along with defendant Nos.1 to 5.
8. Upon hearing the parties, the Trial Court has framed following issues:
1) Whether the plaintiff proves that, the suit “B” Schedule property is joint family property and she had 1/2 share in the suit “B” Schedule property? 2) Whether defendant No.1 proves that, he raised loan as stated in the Written Statement in respect to Medical Expenses of husband of -6- plaintiff and plaintiff is liable to pay to said amount? 3) Whether defendant No.1 proves that, suit is bad for non-joinder of necessary parties? 4) Whether the plaintiff is entitled for the relief sought for? 5) What order or decree? Additional Issue 1) Whether the defendant No.1 proves that the Court Fee paid by the plaintiff on the plaint is incorrect, improper and insufficient?
9. In order to prove the case, the plaintiff is
examined as PW-1 and got marked documentary evidence as Exs.P-1 to 10 and defendant No.5 is examined as DW-1 and defendant No.6 is examined as DW-2 and got marked documentary evidence as Exs.D-1 to D-5.
10. The Trial Court decreed the suit by granting ½ share to the plaintiff in suit schedule B properties by metes and bounds, holding that all the properties are -7- ancestral properties and the relationship between the plaintiff and defendants as per the genealogy is proved.
11. Being aggrieved by the judgment and decree passed by the Trial Court, defendant Nos.1 to 5 have preferred instant appeal by raising various grounds in the appeal.
12. Learned counsel for the appellants/defendant
Nos.1 to 5 submitted that all the ancestral properties are not included in the suit; therefore, the suit filed for partial partition of the property is not maintainable. Also, argued that land bearing R.S.No.70/1 is not included, though it is ancestral property. Defendant No.1 had filed suit in O.S.No.60/2001 against the husband of the plaintiff and the said suit is ended in compromise. Accordingly, the said suit was withdrawn and thereafter, the husband of plaintiff sold land bearing R.S.No.70/1 and usurped all the sale proceeds without giving ½ share to defendant Nos.1 to 5.
-8- Therefore, the suit filed for partial partition is not maintainable. Hence, prayed to allow the appeal.
13. On the other hand, learned counsel for
respondent No.2/defendant No.6 submitted that defendant No.2 is also daughter of Gangappa and is entitled 1/3rd share in the suit schedule properties, but excluding her, the decree of the suit by granting ½ share to the plaintiff and defendant Nos.1 to 5, is not correct. Therefore, prays to grant decree of 1/3rd share as per the counterclaim.
14. Heard the arguments of learned counsels appearing for both the sides and perused the records. Accordingly, the following points arise for consideration in this appeal.
i. Whether, under the facts and circumstances involved in the case, defendant Nos.1 to 5 prove that the land bearing R.S.No.70/1 to the extent of 3 acre 28 guntas is also ancestral property inherited through Gangappa S/o. Kanakappa Goudar and thus, defendant Nos.1 to 6 are entitled share in the said property? -9- ii. Whether, the judgment and decree passed by the Trial Court is correct in not granting share to defendant No.6-Hanumavva W/o. Bheemapppa Nayak? iii. Whether, the judgment and decree passed by the Trial Court requires interference?
15. The relationship between the plaintiff and
defendants and the suit schedule properties are ancestral properties are not in dispute. It is the main contention of learned counsel for the appellants/defendant Nos.1 to 5 that the land bearing R.S.No.70/1 is also ancestral property inherited through Gangappa, but this land is not included in the suit; therefore, the suit filed for partial partition is not maintainable. In this regard, defendant Nos.1 to 5 took a pleading in the written statement at
paragraph Nos.9 and 9(a). It is the contention of defendant Nos.1 to 5 that the land bearing R.S.No.70/1 is also ancestral property inherited through Gangappa. Though in the pleading at paragraph Nos.9 and 9(a) of the written statement, it is stated that defendant No.1 filed - 10 -
suit in O.S.No.60/2001 against the husband of plaintiff and it ended in compromise and thus the said suit was withdrawn and the entire sale proceeds were usurped by the husband of plaintiff. There is nowhere in pleading that land bearing R.S.No.70/1 is ancestral property inherited through Gangappa S/o. Kanakappa Goudar.
16. It is relevant to discuss Ex.D-2 produced by the defendants, which shows that the land bearing R.S.No.70/1 was allotted to the share of one Rangappa
Kanakappa Goudar, who is brother of Gangappa Kanakappa Goudar. Ex.P-2 is the family partition between Gangappa S/o. Kanakappa Goudar and Rangappa S/o. Kanakappa Goudar on 23.08.1960 and it is effected in the mutation entry; thus the land bearing R.S.No.70/1 has not fallen to the share of Gangappa Kanakappa Goudar, who is the original propositus of plaintiff and defendants.
17. Admittedly, the original propositus is Gangappa Kanakappa Goudar. This Gangappa has not been inherited - 11 -
the land bearing R.S.No.70/1; therefore, there is no merit in the contention taken by defendant Nos.1 to 5 that this land bearing R.S.No.70/1 is also ancestral property of Gangappa. Gangappa’s branch is different and Rangappa’s branch is different.
18. Admittedly, the plaintiff and defendant Nos.1 to
5 and defendant No.6 are legal heirs of Gangappa and he is the original propositus. Way back in the year 1960, there was partition between Gangappa and Rangappa. Therefore, so far as land bearing R.S.No.70/1, Gangappa is not at all concerned. The suit filed for partitioning the properties that were allotted to the share of Gangappa; therefore, it is burden on defendant Nos.1 to 5 to prove that this land bearing R.S.No.70/1 is ancestral property inherited through Gangappa, but there is no evidence.
19. Just because the Trial Court omitted to frame issue in this regard, that cannot be a ground to say that the judgment and decree passed by the Trial Court is not - 12 -
correct. Even if, according to defendant Nos.1 to 5, proper issue has not been framed, defendant Nos.1 to 5 could have brought this to the notice of the Trial Court and requested to frame a proper issue. Even if such an issue is not framed, defendant Nos.1 to 5/appellants have failed to prove that the land bearing R.S.No.70/1 belonged to the family of Gangappa. Therefore, defendant Nos.1 to 5 have failed to prove that the land bearing R.S.No.70/1 is also ancestral property of Gangappa and inherited through him. Thus, it became ancestral property of plaintiff and the defendants. Therefore, the plaintiff has a right not include in the land bearing R.S.No.70/1.
20. Since, the properties are proved to be ancestral
properties and the relationship between the parties, are not disputed, the opinion formed by the Trial Court in passing the decree for partition is correct, but the quantity of share passed in the decree, requires interference. - 13 -
21. There are three children to Gangappa S/o. Kanakappa Goudar, who are Ramappa, Panchappa & Hanumavva. The plaintiff is representing Panchappa’s
branch and defendant Nos.1 to 5 are representing Ramappa’s branch and defendant No.6 is the daughter of Gangappa. When Ramappa, Panchappa and defendant No.6 are three children to Gangappa, then the plaintiff, defendant Nos.1 to 5 and defendant No.6 are having 1/3rd equal share in the suit schedule properties. In this regard, the judgment and decree passed by the Trial Court in not
granting any share to defendant No.6, is correct. Therefore, the counterclaim filed by defendant No.6 is liable to be allowed. Therefore, so far as quantum of share allotted in the decree is liable to be interfered with. Accordingly, I answer point Nos.(i) and (ii) in the Negative and point No.(iii) in the partly affirmative.
22. In the result, I proceed to pass the following: - 14 -
ORDER
i. The appeal is allowed-in-part. ii. The judgment and decree dated 11.11.2019 passed in O.S.No.80/2016 on the file of I Additional Senior Civil Judge and JMFC, Bagalkot is modified to the extent that the plaintiff, defendant Nos.1 to 5 together and defendant No.6 are entitled to share of 1/3rd each in the suit schedule properties. iii. Draw decree accordingly. iv. No order as to costs. In view of disposal of the appeal, pending IAs’, if
any, shall stand disposed of. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE SRA CT:BCK LIST NO.: 1 SL NO.: 35