Partly allowed

Clara W/O Jule D Souza v. Anusaya W/O Tukaram Jambotkar

Karnataka HC18 Feb 2019CRP/100090/2018

Case brief

AI extract

What is this about?

This civil revision petition challenged an interlocutory order rejecting an application to set aside a suit. The high court set aside the lower court order and directed the trial court to frame an issue regarding the maintainability of the suit considering the plaintiffs' marital status under the Karnataka Land Reforms Act.

What did the court decide?

Order dated 26.07.2018 set aside; trial court directed to frame issue on maintainability considering plaintiffs' marital status.

Clara W/O Jule D Souza Vs Anusaya W/O Tukaram Jambotkar — Land Acquisition | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF FEBRUARY, 2019

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BEFORE

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THE HON’BLE MR.JUSTICE P.B.BAJANTHRI

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CIVIL REVISION PETITION NO.100090 OF 2018

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BETWEEN

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CLARA W/O JULE D’SOUZA, AGE:57 YEARS, OCC: SERVICE, R/O:SHANTI NAGAR, TILAKWADI, BELAGAVI-590 006.

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... PETITIONER

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(BY SRI.VITTHAL S. TELI, ADVOCATE)

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AND

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ANUSAYA W/O TUKARAM JAMBOTKAR, AGE:73 YEARS, OCC:HOUSE WIFE, R/O.GANAPAT GALLI, PEERANWADI, TAL & DIST:BELAGAVI-590 019.

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KRISHNABAI W/O SITARAM JAMBOTKAR, AGE 69 YEARS, OCC:HOUSE WIFE, R/O:GANAPAT GALLI, PEERANWADI, TAL & DIST:BELAGAVI-590 016

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ANANDIBAI W/O ANNAPPA SHAHPURKAR, SINCE DECEASED.

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(RESPONDENT NOS.1, 2, 4 AND 5 ARE THE LEGAL HEIRS OF RESPONDENT NO.3)

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SUBHADRA WD./O. SHANTARAM MAJUKAR,

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AGE 77 YEARS, OCC:HOUSE WIFE, R/O.H.NO.19 SHIVAJI COLONY, SHANTI NAGAR, TILAKWADI, BELAGAVI-590 006.

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LAXMAN S/O ANNAPPA SHAHPURKAR, AGE:67 YEARS, OCC:AGRICULTURE, R/O:H.NO.190, SHIVAJI COLONY, SHANTI NAGAR, TILAKWADI, BELAGAVI-590 006.

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MAHADEV S/O ANNAPPA SHAHPURKAR, AGE:63 YEARS, OCC:SERVICE, R/O:H.NO.190, SHIVAJI COLONY, SHANTI NAGAR, TILAKWADI, BELAGAVI-590 006.

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APPASAHEB S/O SHANKERAPPA MUNGERAWADI, AGE : 73 YEARS, OCC: BUSINESS, R/O:H.NO 96, II CROSS, SHANTI NAGAR, TILAKWADI, BELAGAVI-590 006.

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SOROJINI W/O RACHAPPA KARIHONNA, AGE:53 YEARS, OCC:HOUSE WIFE, R/O:WARD NO.1, DADDI GALLI, MUDHOL, TAL:MUDHOL, DIST:BAGALKOT-587 313.

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MAHADEV S/O VIRUPAKSHAPPA ANGADI, AGE:65 YEARS, OCC:BUSINESS, R/O:SOMWAR PETH, GOKAK, TAL:GOKAK, DIST:BELAGAVI 591 307.

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APPASAHEB S/O VIRUPAKSHAPPA BELAGI, AGE:60 YEARS, OCC:BUSINESS, R/O:H.NO.103, GANESH PARK, BHAGYA NAGAR, BELAGAVI-590 006

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SHIVKUMAR S/O GURUBASAYYA SWATANTRAMATH, AGE:57 YEARS, OCC:BUSINESS, R/O:WARD NO 1, DADDI GALLI, MUDHOL, TAL:MUDHOL, DIST:BAGALKOT-587 313.

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IBARAHIM KS/O SAYEDUSAB SARWAN, AGE:59 YEARS, OCC:BUSINESS, R/O:NEAR HOUSING COLONY, MANTHOOR ROAD, MUDHOL,

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TAL:MUDHOL, DIST:BAGALKOT-587 313.

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PETER S/O FRANSIS D’SOUZA, AGE : 55 YEARS, OCC:NOT KNOWN, R/O:SHANTI NAGAR, TILAKWADI, BELAGAVI-590 006.

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STEVEN S/O FRANSIS D’SOUZA, AGE:49 YEARS, OCC:SERVICE, R/O:ASHRAYA, PLOT NO 49, 6^TH CROSS, DWARKA NAGAR, TILAKWADI, BELAGAVI-590 006.

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MONICA STEVEN D’SOUZA, AGE:49 YEARS, OCC:HOUSE WIFE, R/O:ASHRAYA PLOT NO 49, 6^TH CROSS, DWARKA NAGAR, TILAKWADI, BELAGAVI-590 006.

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JUJE S/O FRANCIS D’SOUZA AGE:60 YEARS, OCC:BUSINESS, R/O:SHANTI NAGAR, TILAKWADI, BELAGAVI-590 006.

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GAJANAN ANNASAHEB SHAHPURKAR, AGE:53 YEARS, OCC:SLIVER SMITH, R/O:CTS NO 2256, KACHERI GALLI, SHAHAPUR, BELAGAVI-590 003. ... RESPONDENTS

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(BY SRI.M.G.NAGANURI, ADVOCATE FOR R-1 AND 2) (RESPONDENT NOS.1, 2, 4 AND 5 ARE LR’S OF DECEASED RESPONDENT NO.3)

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(NOTICE TO RESPONDENT NO.4 TO 17 DISPENSED WITH)

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(NOTICE TO RESPONDENT NOS.5, 7 AND 10 ARE SERVED)

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(BY SRI.MRUTYUNJAY TATA BANGI, ADVOCATE FOR R-8, 9, 11 AND 12) (BY SMT.CHETANA S. BIRAJ, ADVOCATE FOR RESPONDENT NOS.14 AND 15)

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THIS C.R.P. IS FILED UNDER SEC.115 OF C.P.C., 1908, AND PRAYED TO SET ASIDE THE ORDER ON I.A.NO.XX DATED 26.07.2018 PASSED IN O.S.NO.182 OF 2009 BY THE II ADDITIONAL SENIOR CIVIL JUDGE AND C.J.M., BELAGAVI, THIS REVISION PETITION MAY KINDLY BE ALLOWED IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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ORDER

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The present petition is filed against the order dated 26.07.2018 passed on I.A.No.XX in O.S.No.182 of 2009

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on the file of II Additional Senior Civil Judge and C.J.M., Belagavi. The trial Court on the petitioner’s application I.A.No.XX framed the following points for consideration

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namely “whether the petitioner-defendant No.15

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application deserves to be rejected under Order VII Rule 11(d) of the C.P.C. In paragraph No.14 of the impugned order examined the I.A.No.XX and considered the sub-

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Section 12 of Section 2 of the Karnataka Land Reforms Act, 1961, whether the married daughters can file a claim of share or right in the tenanted land or not?

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The contention of the petitioner has been

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rejected on both the issues with reference to sub-Section 12 of Section 2 of the Karnataka Land Reforms Act, 1961 and further the application is belated at paragraph No.17 of the order.

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Learned counsel for the petitioner submitted two fold arguments that sub-Section 12 of Section 2 of the Karnataka Land Reforms Act, 1961 was required to be examined with reference to the plaintiffs whether they are married, if so, what is the date of marriage, are relevant for the purpose of entertaining the suit, as it was

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undisputed that Form No.7 was submitted by the plaintiffs’ father. It was also contended that there is no hurdle for entertaining such interlocutory application since trial Court can frame additional issue.

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On the other hand, the learned counsel for the respondents vehemently contended that plaintiff No.2 is unmarried therefore, suit is maintainable. At the same time, it was not disputed that plaintiff Nos.1 and 3 are married. In view of these factual aspects read with subSection 12 of Section 2 of the Karnataka Land Reforms

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Act, 1961, there would be no harm in framing one of the issues relating to maintainability of suit by the plaintiffs.

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Thus, trial Court has committed error in not appreciating sub-Section 12 of Section 2 of the Karnataka Land Reforms Act, 1961 and undisputed fact is that plaintiff No.2 is unmarried and plaintiff Nos.1 and 3 are married read with the Karnataka Land Reforms Act, 1961.

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Accordingly, order dated 26.07.2018 passed on I.A.No.XX in O.S.No.182 of 2009 vide Annexure-E is set aside.

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Reserving liberty to the trial Court to consider in framing one of the issue relating to maintainability of the suit, plaintiffs were married persons namely plaintiff Nos.1 and 3, with the above observations, petition stands disposed off.

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At this stage, learned counsel for the petitioner submitted that plaintiff No.2 namely Miss.Renuka daughter of Annappa Shahapurkar she is stated to have died on 30.11.2017, whereas the other two plaintiffs are married. Therefore, trial Court can decide restricting the suit in respect of two married plaintiffs’. The trial Court is hereby directed to take note of the death of the unmarried-plaintiff No.2.

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In view of the disposal of the main matter, I.A.No.1 of 2018 filed for seeking stay does not survive for consideration.

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Leaving open all the contentions of both the parties,

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the Court below is permitted to proceed in accordance

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with law.

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SD JUDGE

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CKK/-

Clara W/O Jule D Souza v. Anusaya W/O Tukaram Jambotkar

Case brief

What is this about?

What did the court decide?

Clara W/O Jule D Souza v. Anusaya W/O Tukaram Jambotkar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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