Allowed

Mallappa Appanna Nagareddi v. Sagareppa Appanna Nagareddi

Karnataka HC22 Nov 2023RSA/5190/2008

Case brief

AI extract

What is this about?

The High Court allowed the regular second appeal against the first appellate Court's order dismissing the plaintiff's suit for partition. The Court held the first appellate Court acted perversely by allowing the defendant's appeal while ignoring that the appeal against the plaintiff was dismissed for non-taking of steps.

What did the court decide?

Regular second appeal allowed; impugned judgment of first appellate Court set aside and matter remitted for reconsideration.

Mallappa Appanna Nagareddi Vs Sagareppa Appanna Nagareddi — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:13628 RSA No. 5190 of 2008

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 22^ND DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

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REGULAR SECOND APPEAL NO.5190 OF 2008 (PAR)

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BETWEEN

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1 . MALLAPPA APPANNA NAGAREDDI SINCE DECEASED BY HIS LRS

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a) SMT. KAMALAVVA

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W/O. MALLAPPA NAGAREDDI, SINCE DECEASED BY HER LRS

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Digitally
signed by
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
2023.11.23
11:10:44
+0530

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b) SHRI. YALLAPPA S/O. MALLAPPA NAGAREDDI, AGE ABOUT 48 YEARS, OCC: AGRICULTURE, R/O. SHIROL, TQ. MUDHOL, DIST.BAGALKOT.

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c) SMT. MALAVVA D/O. MALLAPPA NAGAREDDI, AGE ABOUT 40 YEARS, OCC: HOUSEHOLD,

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R/O. BENAKATTI, TQ. AND DIST. BAGALKOT.

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d) ASHOK

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S/O. MALLAPPA NAGAREDDI, AGE ABOUT 35 YEARS, OCC: AGRICULTURE,

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R/O. SHIROL, TQ. MUDHOL, DIST. BAGALKOT.

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2 - NC: 2023:KHC-D:13628 RSA No. 5190 of 2008

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e) SMT. GEETA W/O. SAGAREPPA NYAMAGOUDA, AGE 30 YEARS, OCC: HOUSEHOLD, R/O. MELLIGERI, TQ. MUDHOL, DIST.BAGALKOT.

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...APPELLANTS

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(By Sri. K.B. NAVALGIMATH, ADVOCATE; V/O DATED 31.07.2023 A1 (B-E) ARE TREATED AS LR’S OF DECEASED A1(A))

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AND

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1 . SAGAREPPA APPANNA NAGAREDDI, AGE ABOUT: 65 YEARS, OCC: AGRICULTURE, R/O. SHIROL, TQ: MUDHOL, DIST. BAGALKOT.

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2 . SMT. NEELAVVA W/O RAMAPPA KALLOLLI, SINCE DECEASED BY HER LRS (RESPONDENTS 1, 3 TO 7)

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3 . SMT. SHANTAVVA W/O BHIMAPPA PANCHAGAVI, SINCE DECEASED BY HER LR

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a) SMT. PREMA W/O. RAGHAPPA PATIL, AGE ABOUT: 45 YEARS, OCC: HOUSEHOLD, R/O. “AKSHATA KUTIRA”, NEAR BOAT OFFICE, HOUSING COLONY, BAGALKOT.

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4 . SMT. TAYAVVA W/O VENKAPPA NADUVINMANI, AGE ABOUT: 58 YEARS, OCC: HOUSEHOLD, R/O: HALAGALI, TQ: MUDHOL, DIST: BAGALKOT.

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5 . SMT. RACHAVVA W/O KADAPPA NAGAREDDI, AGE ABOUT 55 YEARS, R/O. SHIROL, TQ. MUDHOL, DIST: BAGALKOT.

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(VIDE ORDER DATED 10.04.2015, APPEAL AGAINST R5 IS DISMISSED)

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- 3 - NC: 2023:KHC-D:13628 RSA No. 5190 of 2008

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6 . MAHESH S/O KADAPPA NAGAREDDI, SINCE DECEASED BY HIS LRS

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a) SMT. ANASUYA W/O/ MAHESH NAGAREDDI, AGE ABOUT 40 YEARS, OCC: HOUSEHOLD,

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b) KIRAN S/O. MAHESH NAGAREDDI, AGE ABOUT: 25 YEARS, OCC: AGRICULTURE,

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c) ARUN S/O. MAHESH NAGAREDDI, AGE ABOUT: 24 YEARS, OCC: AGRICULTURE,

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ALL R/O. SHIROL, TQ: MUDHOL, DIST: BAGALKOT.

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7 . SIDDAROODHA S/O KADAPPA NAGAREDDI, AGE ABOUT: 25 YEARS, OCC: AGRICULTURE, R/O. SHIROL, TQ: MUDHOL, DIST. BAGALKOT.

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…RESPONDENTS

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(By Sri. M.C. HUKKERI FOR R1; R2, R3, R6- DECEASED; R1, R3-R7 ARE LR’S OF DECEASED R2; R3(A) AND R4 HELD SUFFICIENT; V/O DATED 10.04.2015 R5-DISMISSED; R7, R6A, R6B, R6C - SERVED)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 25.07.2008 PASSED IN R.A.NO. 01/2005 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN.) JAMKHANDI, SITTING AT MUDHOL, ALLOWING THE APPEAL AND REVERSING THE JUDGMENT AND DECREE DATED 17.04.2002 PASSED IN O.S.NO. 311/1997 IN THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) MUDHOL.

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THIS REGULAR SECOND APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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4 - NC: 2023:KHC-D:13628 RSA No. 5190 of 2008

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JUDGMENT

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The appeal has been admitted by this Court on 02.02.2009 on the following substantial question of law:

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“Whether the lower appellate Court was right and justified in dismissing the suit filed by the plaintiff – appellant herein though the appeal filed by defendant No.2 against the judgment and decree passed by the trial Court decreeing the suit granting 1/7^th share in the suit schedule properties in favour of the plaintiff had stood dismissed against the plaintiff – appellant herein and as also against respondent Nos.3 to 6 herein?

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Learned counsel for the appellant and the learned counsel for the respondents have been heard on the substantial question of law framed by this Court, the short question involved in this appeal is as to whether the judgment and decree of the first appellate Court warrants interference in view of the appeal being dismissed against respondent No.1 (present appellant) and respondent

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5 - NC: 2023:KHC-D:13628 RSA No. 5190 of 2008

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Nos.3 & 6 for non taking steps by the appellant – defendant No.2 in R.A. No.1/2005?

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The brief facts of the case are that the plaintiff

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one Mallappa Appanna Nagareddi filed a suit for partition and separate possession in respect of the suit land bearing R.S. No.127 measuring 20 acres 19 guntas situated at Mallapur Village in Mudhol Taluka. The plaintiff contended that the suit properties are the ancestral properties of the plaintiff and defendants and they are in joint possession and enjoyment of the suit schedule properties and the plaintiff is having 1/7^th share in the suit land.

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Pursuant to the suit summons issued by the trial Court, defendant Nos.1 & 2 and defendant Nos.6 to 8 tendered their appearance, but however did not choose to file their written statement. Defendant Nos.3 & 5 were placed exparte and the suit against defendant No.4 was dismissed. Before the trial Court, plaintiff examined himself as PW1 and got marked the document at Ex.P1. The trial Court framed the issue and held that the plaintiff

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6 - NC: 2023:KHC-D:13628 RSA No. 5190 of 2008

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is entitled for partition in respect of the suit schedule properties placing reliance on the material placed by the plaintiff. The appeal was preferred before the first appellate Court by defendant No.2. The first appellate Court allowed the appeal filed by defendant No.2 and set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff. It is relevant to note that respondent Nos.1 to 3 & 6 in R.A. No.1/2005 are the plaintiff and defendant Nos.3 & 5. The order sheet pertaining to R.A. No.1/2005 more particularly the order dated 08.12.2006 evidences that the appellant – defendant No.2 in R.A. No.1/2005 had not taken steps against the contesting respondents and the appeal stood dismissed against the said respondents for non taking steps.

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Pursuant to the order dated 08.12.2006, the matter stood adjourned and finally by the impugned order, the first appellate Court arrived at a conclusion that the appeal of defendant No.2 needs to be allowed and set

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7 - NC: 2023:KHC-D:13628 RSA No. 5190 of 2008

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aside the judgment and decree of the trial Court, wherein the suit of the plaintiff was decreed. The first appellate Court while allowing the appeal of defendant No.2 has mechanically passed an order without application of mind and without considering that the appeal against the contesting respondents, more particularly, the plaintiff – appellant herein defendant No. 2 has not taken the steps and the appeal has been dismissed for taking steps against the said plaintiff. In the said fact, the contesting respondents were not heard by the first appellate Court, the entire exercise of the first appellate Court calls for interference and the same suffers from perversity. The substantial question of law framed by this Court is answered in favour of the appellant holding that the first appellate Court was not justified in dismissing the suit of the plaintiff without appearance of the plaintiff in the appeal as the appeal stood dismissed for non taking steps against the contesting respondents. In the said circumstances, this Court is of the considered view that the matter requires to be reconsidered by the first

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8 - NC: 2023:KHC-D:13628 RSA No. 5190 of 2008

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appellate Court and the parties are to be relegated for reconsideration of the matter afresh in accordance with

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law and accordingly, this Court pass the following:

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ORDER

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(i) The Regular Second Appeal is hereby allowed.

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(ii) The impugned judgment and decree of the first appellate Court dated 25.07.2008 in R.A. No.1/2005 on the file of the Addl. Civil Judge (Sr.Dn.), Jamkhandi sitting at Mudhol is hereby set aside and the matter is remitted back of the first appellate Court for reconsideration afresh in accordance with law after affording sufficient and reasonable of opportunities to the parties.

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(iii) During the pendency of the appeal, the appellant – plaintiff and the original defendants have died and subsequently, the L.Rs. of the appellant and the respondents have been brought on record. Under the said circumstances, the legal representatives of the plaintiffs and the

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9 - NC: 2023:KHC-D:13628 RSA No. 5190 of 2008

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defendants to appear before the first appellate Court on 18.12.2023 without awaiting any further notice from the first appellate Court.

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(iv) In the event the appellate court finds any notice to be required to be issued to parties it shall do so in accordance with law.

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(v) All the contentions of the parties are kept open.

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(vi) Merits and demerits of the matter is not considered by this court.

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(vii) Since the appeal of the year 2005, the Appellate Court to dispose of the appeal as expeditiously as possible.

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(viii) TCR to be transmitted forthwith.

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Sd/JUDGE

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VNP / CT: UMD

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List No.: 1 Sl No.: 66

Mallappa Appanna Nagareddi v. Sagareppa Appanna Nagareddi

Case brief

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Mallappa Appanna Nagareddi v. Sagareppa Appanna Nagareddi

Case brief

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