Full Judgment
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7TH DAY OF MARCH, 2024 BEFORE THE HON'BLE MRS JUSTICE M.G.UMA REGULAR FIRST APPEAL NO. 1761 OF 2007 (PAR) BETWEEN: SMT. UMA D/O LATE NAGAPPA GOVINDAPPA SHETTY, W/O SHIVANAND HONNAPPA SHETTY AGE: 61 YEARS, OCC: HOUSEHOLD WORK, R/O: ALAGERI VILLAGE, TAL: ANKOLA TALUK, DIST: UTTARA KANNADA …APPELLANT (BY SRI: SANGRAM .S. KULKARNI, ADVOCATE) AND:
1. GOVIND
S/O LATE NAGAPPA GOVINDAPPA SHETTY, AGE: 77 YEARS, OCC: PRIVATE BUSINESS, R/O. OPP. HIGHER PRIMARY SCHOOL, AJJIKATTA, NEELAMPUR, ANKOLA TALUK, UTTARA KANNADA DISTRICT SINCE DECEASED BY HIS LR'S R1 A TO R1D Digitally R1(A) SMT. PADMA GOVIND SHEETY signed by MANJANNA E WIFE, AJJIKATTA, Location: High Court of NEELAMPUR, ANKOLA. Karnataka R1(B) SAVITA MOHAN SHETTY DAUGHTER, AGE: 33 YEARS. R/O: NEW ARYA DURGA RESTAURANT| IDUGUNDI VILLAGE, YELLAPURA TALUK, UTTARA KANNADA DISTRICT R1(C) ANITA NAGARAJA SHETTY, DAUGHTER, AGE: 30 YEARS R/O IDUGUNDI, VILLAGE, YELLAPPA TALUK, UTTARA KANNADA DISTRICT. -2- R1(D) KAVITA VINOD SHETTY DAUGHTER, AGE: 32 YEARS. R/O POST BANKIKODLA, KUNTA TALUK, UTTARA KANNADA DISTRICT.
2. YAKUB KHAN
S/O YUSUF KHAN PATHAN, (SINCE DECEASED REPRESENTED BY HIS LR'S) 2A. RIYAZ KHAN S/O YAKUB KHAN, AGE: 52 YEARS, OCC: TEACHER, R/O: AJJIKATTA ANKOLA 2B ILYAS KHAN S/O YAKUB KHAN, AGE: 51 YEARS, OCC: BUSINESS, R/O: AJJIKATTA ANKOLA 2C ASHFAQ KHAN S/O YAKUB KHAN, AGE: 49 YEARS, OCC: WASHER-MAN, R/O: AJJIKATTA ANKOLA 2D JUNIBI D/O YAKUB KHAN, AGE: 44 YEARS, OCC: HOUSEHOLD, R/O: BANDER ROAD, ANKOLA 2E IRFAN KHAN S/O YAKUB KHAN, AGE: 42 YEARS, OCC: WASHER-MAN, R/O: AJJIKATTA ANKOLA 2F JAVEED KHAN S/O YAKUB KHAN, AGE: 38 YEARS, OCC: WASHER-MAN, R/O: AJJIKATTA ANKOLA …RESPONDENTS (BY SRI: VISHWANATH HEDGE ADVOCATE FOR
SRI: K.S. PATIL ADVOCATE FOR SRI: JEEVAN J NEESARGI, ADVOCATE FOR R1(B), R1(C) AND R2 R1(A) -SD, R1(D) -SD RAJASHEKHAR BURJI, ADVOCATE FOR R2(A TO D) -3- V/O DTD: 08.11.2023 APPEAL IS DISMISSED AS AGAINST PROPOSED R2 (E &F))
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGMENT
AND DECREE DATED 21.04.2007 PASSED IN OS.NO.8/2006 ON THE FILE OF THE CIVIL JUDGE (SR. DN.) KUMTA, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION AND ETC., THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
ORDER
Plaintiff in OS.No.8/2006 (old OS.No.31/2005) on the file
of the Civil Judge (Sr.Dn.) Kumuta is impugning the judgment
and decree dated 21.04.2007 dismissing her suit for partition and separate possession.
2. For the sake of convenience, the parties shall be referred to as per their ranks and status before the Trial Court.
3. Brief facts of the case are that plaintiff filed the suit
against defendant Nos.1 and 2 contending that she is the sister of defendant No.1 and they are the children of late Nagappa Govinda Shetty, who is the original owner of the suit properties. Nagappa Govinda Shetty had two wives. Plaintiff and defendant No.1 are the children from the first wife. Second wife had no issues. Therefore, after the death of Nagappa Govinda Shetty on 09.12.1983, the name of defendant No.1
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being the son, entered in the record of rights as per ME No.4083 and 4025. Taking advantage of fact that the revenue records stood in the name of defendant No.1, he sold 6 guntas of land in Sy.No.64/A/6 of Shedgeri village, Ankola Taluk in favour of defendant No.2 under a registered sale deed. Defendant No.1 started denying legitimate share of the plaintiff over the schedule properties. There was no partition in the family and defendant No.1 refused to effect partition. The sale effected by defendant No.1 in favour of defendant No.2 is not binding on the plaintiff. Therefore, plaintiff sought for partition and separate possession of the property by metes and bounds.
4. Defendant No.1 appeared before the trial Court and
denied the contentions taken by the plaintiff. The relationship between the parties is denied. It is contended that defendant No.1 is the son of Nagappa Govinda Shetty and he alone is entitled for the schedule properties. Accordingly, the revenue records stood in his name. He renovated the building in Ankola town and constructed residential house at Agsoor village. He made huge investments. The plaintiff is making false and fractious claim over the suit properties and therefore, prays for dismissal of the suit.
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5. Defendant No.2 filed a memo adopting the written statement filed by defendant No.1.
6. On the basis of these pleadings the following issues
came to be framed.
1. Whether Plaintiff's prove that the suit schedule properties are the joint family properties of herself and the Defendants?
2. Whether the Plaintiff's prove that she is entitled for half share in all the suit schedule properties?
3. Whether the Plaintiff's prove that the Defendant's have refused to give her share in the suit schedule properties?
4. Whether the Defendant's prove that the Plaintiff has not paid correct court fee?
5. Weather the Defendant's prove that the Plaintiff is no way the deceased Nagappa related to Shetty? 6.Whether the Plaintiff is entitled for the relief sought for? 7.What order or decree?
7. Plaintiff examined herself as PW1 and got examined PWs.2 and 3 and got marked Exs.P.1 to 15 in support of her -6-
contention. Defendant No.1 examined himself as DW1 and got examined DWs.2 and 3 and got marked Exs.D1 to 15 in support of his contention. The trial court after taking into consideration all these materials on record, answered issue Nos.1 to 4 and 6 in the negative. Issue No.5 in the affirmative and proceeded to dismiss the suit holding that the plaintiff has not proved her relationship with defendant No.1. Being aggrieved by the same, plaintiff is before this Court.
8. Heard Sri. Sangram S Kuklarni, learned counsel for
the petitioner and Sri. Vishwanath Hegde, Sri.K.S.Patil, learned counsels for respondent No.1(b), Respondent No.1(c) and Respondent No.2, Sri. Rajashekhar Burji, learned counsel for respondent Nos.2(a to d), Respondent No.1(a) and 1(d) serve but unrepresented.
9. Learned counsel for the appellant contended that appellant is the sister of defendant No.1 and they are the children of Nagappa Govinda Shetty, who died in the year
1983. His first wife Radha is the mother of the plaintiff and defendant No.1. After death of Radha, Nagappa Govinda Shetty had married Smt. Lakshmi. But she died issueless. Therefore, it -7-
is only the plaintiff and defendant No.1 who are the legal representatives of Nagappa Govinda Shetty. Since defendant No.1 is the son of Nagappa Govinda Shetty, he got mutated his name in the revenue records in respect of the schedule properties and managed to sell 6 guntas of land in favour of defendant No.2 under the registered sale deed. He denied the right of the plaintiff to give her legitimate share. Therefore, the plaintiff has filed this suit seeking partition and separate possession.
10. Learned counsel submitted that the burden to prove
the contention of defendant No.1 denying his relationship with the plaintiff was on defendant No.1. Defendant No.1 during cross examination categorically admitted that the plaintiff Meera @ Uma is his sister. He also admitted that the Nagappa Govinda Shetty of Islampur mentioned in Ex.P.15 is referring to his father. Ex.P.15 is the birth certificate relating to the plaintiff, which was issued at an undisputed point of time.
When defendant No.1 in unequivocal terms admits the relationship of the plaintiff, the trial Court could not have dismissed the suit. The trial Court has committed an error in holding that Meera @ Shanta Bai is not the plaintiff and the -8- plaintiff has not proved her relationship with defendant No.1. Hence, prays for allowing the appeal and decreeing the suit as prayed for.
11. Per contra, learned counsel for respondent No.1 (b)
and (c) opposing the appeal submitted that defendant has taken a specific stand in the written statement denying his relationship with the plaintiff. During cross examination of DW1, a stray evidence was elicited regarding the plaintiff being his sister and the same cannot be taken advantage by the plaintiff, when there are absolutely no other materials to prove her relationship. Plaintiff pleaded her ignorance regarding relatives of defendant No.1. If infact she was the sister of defendant No.1, she would have been in a position to speak about other relatives. Issue No.5 framed by trial Court is answered in affirmative in favour of defendant No.1.
12. Learned counsel further submitted that defendant
No.1 is the absolute owner got his name entered in the revenue records, none of the revenue entries were challenged by the plaintiff. Moreover, plaintiff sold 6 guntas of land in favour of defendant No.2 under a registered sale deed. Under such -9- circumstances, plaintiff is not entitled for any relief. Accordingly, prays for dismissal of the appeal.
13. Learned counsel for respondent Nos. 2 (a to d)
contended that defendant No.2 is the bonafide purchaser of 6 acres of land from defendant No.1 under the registered sale deed. Therefore, his right may be protected even if the appeal is to be allowed.
14. Perused the materials, including the Trial Court records.
15. In view of the rival contentions urged by learned counsel for the parties, the point that would arise for my consideration is: “Whether the impugned judgment and decree passed by the Trial Court suffers from perversity or illegality and calls for interference by this Court?” My answer to the above point is in the ‘Affirmative’ for the following: - 10 - REASONS
16. It is the contention of the plaintiff that she is the
sister of defendant No.1, being the daughter of Nagappa Govinda Shetty and his first wife Radha. This fact is denied by defendant No.1 by filing written statement. Plaintiff examined herself as PW1. Even though witness was cross examined at length, nothing has been elicited from her to disbelieve her version. Plaintiff has also examined PWs.2 and 3. She got marked Ex.P.15-the birth certificate issued by the Tahasildar, Ankola. According to which, Meera Bai @ Shanta Bai was born to Nagappa Govinda Shetty of Islampur on 16.05.1946.
17. Defendant No.1 examined himself as DW1. Even
though he denied that plaintiff is his sister, he categorically states that except Meera @ Uma, he has no other sisters. This admission goes a long way in proving the relationship of the plaintiff with defendant No.1. If in fact plaintiff was not related to defendant No.1, there was no occasion for defendant No.1 to give such fatal admission. If at all DW1 was not referring to the plaintiff, when he says except Meera @ Uma he has no other sisters, he could have explained it. No such attempt was made
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by the witness. Interestingly, defendant No.1 admits that Nagappa Govinda Shetty of Islampur, referred to in Ex.P.15-the birth certificate is his father. Ex.P.15 was issued at an undisputed point of time by the competent authority and there is no reason to disbelieve this document. If Ex.P.15 is considered along with the admission made by DW1, I do not find any reason to doubt the relationship of plaintiff with defendant No.1. Therefore, I am of the opinion that the relationship of the plaintiff with defendant No.1 is proved.
18. Once relationship of the plaintiff with defendant
No.1 is proved, she will be entitled for half share in the schedule properties, which were admittedly left behind by her father Nagappa Govinda Shetty. Apart from plaintiff and defendant No.1, there are no other legal representatives left behind by Nagappa Govinda Shetty. Therefore, I am of the opinion that the plaintiff is entitled for half share in the schedule property.
19. Admittedly, defendant No.1 sold 6 guntas of land in the schedule property in favour of defendant No.2 under a the registered sale deed. Defendant No.2 being respondent No.2 in - 12 - this appeal is entitled to work out equity in the final decree proceedings.
20. I have gone through the impugned judgment and
decree passed by the trial Court. The trial Court has committed an error in ignoring the fatal admissions given by defendant No.1 and proceed to answer all the issues except issue No.5 in the negative. The reasons assigned by the trial Court is perverse and it is not convincing. Therefore, I am of the opinion that the same is liable to be set aside. Accordingly, I answer the above point in the Affirmative and proceed to pass the following;
ORDER
i) The appeal is allowed with cost. ii) The impugned judgment and decree dated 21.04.2007 passed in OS.No.8/2006 (Old number OS.No.31/2005) by Civil Judge (Sr.Dn.) Kumuta is set aside. iii) Consequently, suit of the plaintiff in OS.No.8/2006 (Old number OS.No.31/2005) is decreed as prayed for holding that the plaintiff is entitled for half share in the suit property. - 13 -
iv) Defendant No.2 is entitled to workout equity in the final decree proceedings. v) In view of the disposal of the main petition, pending IAs are disposed off. vi) Office is directed to send back the TCR to the Trial Court along with the copy of this
judgment.
SD/- JUDGE BH List No.: 1 Sl No.: 22