Allowed

Panchayya S/O. Basavnneyya Hiremath v. Sri. Chandrashekharyya S/O Ajjayya Akkurmath

Karnataka HC4 Sept 2024RFA/100158/2021

Case brief

AI extract

What is this about?

Appeal against dismissal of partition suit allowed. Court noted appellants failed to account for other deceased heirs, creating a crucial lacuna. Appalants permitted to file fresh suit if they prove ownership by propositus and absence of prior partition, subject to disposal of current application.

What did the court decide?

Appeal and applications disposed of allowing liberty to file fresh suit subject to just liberties.

Panchayya S/O. Basavnneyya Hiremath Vs Sri. Chandrashekharyya… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:12720-DB RFA No. 100158 of 2021

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 4^TH DAY OF SEPTEMBER, 2024

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PRESENT

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THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD

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AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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REGULAR FIRST APPEAL NO.100158 OF 2021 (PAR/POS)

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BETWEEN:

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SRI. PANCHAYYA S/O. BASAVNNEYYA HIREMATH, AGED ABOUT 52 YEARS, OCC: AGRICULTURE, R/O: BHUDIHAL VILLAGE, TQ: SHIRAHATTI, DIST: GADAG-582119.

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Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD Date: 2024.09.24 11:57:38 +0530

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SRI. MANJAYYA S/O. BASAVANNEYYA HIREMATH, AGED ABOUT 49 YEARS, OCC: AGRICULTURE, R/O: BHUDIHAL VILLAGE, TQ: SHIRAHATTI, DIST: GADAG-582119.

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(BY SRI. SUNIL S. DESAI, ADVOCATE)

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…APPELLANTS

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AND:

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SMT. DEVIRAVVA @ KASTUREVVA W/O. AJJAYYA AKKURMATH, (SINCE DIED BY HER LR’s.,

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SRI. CHANDRASHEKHARYYA S/O. AJJAYYA AKKURMATH, AGED ABOUT 42 YEARS, OCC: AGRICULTURE,

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2 - NC: 2024:KHC-D:12720-DB RFA No. 100158 of 2021

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R/O: BHUDIHAL VILLAGE, TQ: SHIRAHATTI, DIST: GADAG-582119.

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SRI. MALLAYYA S/O. AJJAYYA AKKURMATH, AGED ABOUT 37 YEARS, OCC: AGRICULTURE, R/O: BHUDIHAL VILLAGE, TQ: SHIRAHATTI, DIST: GADAG-582119.

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SRI. SHANKRAYYA S/O. VEERAYYA RITTIMATH, AGED ABOUT 57 YEARS, OCC: AGRICULTURE, R/O: BHUDIHAL VILLAGE, TQ: SHIRAHATTI, DIST: GADAG-582119.

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…RESPONDENTS (NOTICE TO R1 TO R3 IS SERVED AND UNREPRESENTED)

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THIS RFA IS FILED UNDER SEC. 96 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 09.12.2020 PASSED IN O.S. NO.33/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, LAXMESHWAR, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD

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AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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NC: 2024:KHC-D:12720-DB RFA No. 100158 of 2021

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)

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This appeal is by the unsuccessful plaintiffs in O.S. No.33/2019 on the file of the Senior Civil Judge and JMFC Laxmeshwar [for short, ‘the civil Court’ ] inasmuch their suit for partition is dismissed by the civil Court by judgment and decree dated 09.12.2020. The appellants have filed the suit against the respondents asserting that if they are the children of Smt. Chandravva D/o Sri Shekarayya Shivamurthayya Akkurmath, the first and the second respondents are the sons of Sri. Ajjayya Akkurmath, who is the son of Sri. Shekarayya Shivamurthayya Akkurmath. Smt. Deviravva W/o Ajjayya Akkurmath has died and because of her sons are on record, the suit is continued without bringing the legal representatives on record. The third respondent is arrayed as a purchaser of one of the suit schedule properties from the first respondent.

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The respondents – defendants have not contested

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the suit, and in fact, they have remained absent even in the

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4 - NC: 2024:KHC-D:12720-DB RFA No. 100158 of 2021

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present proceedings. The civil Court has framed different points for consideration which is essentially examined the evidence on record to know whether they establish that they are the members a joint family comprising of the first and the second respondents. The civil Court, on perusal of evidence which is essentially the second appellant’s ocular evidence and the revenue records apart from sale deed executed by the first respondent in favour of the third respondent, has opined that the suit schedule properties originally belonged to Sri Shekarayya Shivamurthayya Akkurmath and later to Sri Ajjayya Akkurmath and that the appellants are not in any way related to the aforesaid respondents.

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The appellants have filed an application under Order XLI Rule 27 of CPC seeking leave to produce additional evidence viz ., a Legal Heirs’ Certificate and a certified copy of the revenue entries in M.E. No.596. The appellants propose to rely upon these documents to demonstrate that the suit schedule properties [except suit item No.3 – the land measuring 4 acres 6 guntas in Survey

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5 - NC: 2024:KHC-D:12720-DB RFA No. 100158 of 2021

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No.17/3 of Budihal village, Sirahatti Hobli, Sirahatti Taluk] were in the name of Sri Shekarayya Shivamurthayya Akkurmath and he died on 20.03.1976 leaving behind his son, Sri Ajjayya Akkurmath and five daughters including their mother, Smt. Chandravva.

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This Court must observe that even if this document could have some relevance and probative value and it is admissible upon the certified copy thereof being produced, it will be undeniable that the propositus – Sri Shekarayya Shivamurthayya Akkurmath has died leaving behind not just the appellant’s mother and Sri Ajjayya C. Akkurmath, but four other daughters. The appellants have not stated anything about these daughters, much less why they would be excluded with only the appellants and the legal representatives of Sri Ajjayya C. Akkurmath taking the properties in equal shares. This Court must opine that this will be a crucial lacuna and unless this is clarified, the appellants cannot succeed even in this appeal.

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6 - NC: 2024:KHC-D:12720-DB RFA No. 100158 of 2021

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However, in the interest of justice this Court must also observe that if indeed the appellants can demonstrate that the properties were indeed owned by the propositus – Sri Shekarayya Shivamurthayya Akkurmath and that there has been no partition in the family, they must be, because the right to seek partition will be a recurring right, at liberty to file a fresh suit notwithstanding the present proceedings provided all the details are set-forth. Hence, the appeal and the applications stand disposed off subject to all just liberties.

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Sd/(B.M.SHYAM PRASAD) JUDGE

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Sd/(C.M.JOSHI) JUDGE

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RSH, YAN / Ct:vh List No.: 1 Sl No.: 4

Panchayya S/O. Basavnneyya Hiremath v. Sri. Chandrashekharyya S/O Ajjayya Akkurmath

Case brief

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Panchayya S/O. Basavnneyya Hiremath v. Sri. Chandrashekharyya S/O Ajjayya Akkurmath

Case brief

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