Dismissed

Laxmawwa W/O Bhimappa Hirennavar v. Adiveppa S/O Hanamappa Hirennavar

Karnataka HC17 Dec 2024RFA/100239/2022

Case brief

AI extract

What is this about?

Final decree proceeding sought to demarcate properties already orally partitioned, following dismissal of a declaration and partition suit confirmed up to the Supreme Court. The High Court held a final decree is not maintainable without a preliminary decree and dismissed the appeal, permitting the appellants to instead sue for boundary demarcation or declaration and injunction.

What the court decided

AI extract

Laxmawwa W/O Bhimappa Hirennavar Vs Adiveppa S/O Hanamappa… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:18310 RFA No. 100239 of 2022

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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REGULAR FIRST APPEAL NO. 100239 OF 2022 (FDP-)

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BETWEEN:

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BHIMAPPA S/O. ADIVEPPA HIRENNAVAR (SINCE DECEASED BY HIS LRS)

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LAXMAWWA

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W/O. BHIMAPPA HIRENNAVAR, AGE. 70 YEARS, OCC. AGRICULTURE.

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RENNAWWA W/O. SHIVAPPA KURI AGE. 52 YEARS, OCC. AGRICULTURE.

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Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA

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DEVAKEWWA W/O. KENCHAPPA GUDUR, AGE. 50 YEARS, OCC. AGRICULTURE, ALL R/O. NAGARAL SP VILLAGE, TQ. GULEDGUDD, DIST. BAGALKOT.

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SHANTAWWA W/O. SAKREPPA NARENNAVAR, AGE. 79 YEARS, OCC. AGRICULTURE, R/O. WADAGERI VILLAGE, TQ. HUNGUND, DIST. BAGALKOT.

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HANMAWWA D/O. BHIMAPPA HIRENNAVAR, AGE. 45 YEARS, OCC. AGRICULTURE.

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2 - NC: 2024:KHC-D:18310 RFA No. 100239 of 2022

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MEENAXI D/O. BHIMAPPA HIRENNAVAR, AGE. 42 YEARS, OCC. AGRICULTURE, BOTH R/O. NAGARAL SP VILLAGE, TQ. GULEDGUDD, DIST. BAGALKOT.

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NAGAWWA W/O. GANESH BELGAL, AGE. 40 YEARS,OCC. AGRICULTURE, R/O. GULEDGUDD, TQ. GULEDGUDD, DIST. BAGALKOT.

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…APPELLANTS

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(BY SRI. N. L. BATAKURKI AND SRI. S.S. BAWAKHAN, ADVOCATES)

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AND:

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ADIVEPPA S/O. HANAMAPPA HIRENNAVAR, AGE. 65 YEARS, OCC. AGRICULTURE

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YAMANAPPA S/O. HANAMAPPA HIRENNAVAR, AGE. 63 YEARS, OCC. AGRICULTURE

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MANGALAVVA W/O. HANAMAPPA HIRENNAVAR, AGE. 79 YEARS, OCC. AGRICULTURE, ALL R/O. NAGARAL SP VILLAGE, TQ. BADAMI, DIST. BAGALKOT.

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…RESPONDENTS

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(BY SRI. VIJAYENDRA BHIMAKKANAVAR, ADVOCATE FOR R2; R1 AND R3 ARE SERVED)

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THIS RFA FILED UNDER ORDER 41 RULE 1 READ WITH SECTION 96 OF CPC., PRAYING TO CALL FOR LCR’S IN FDP NO.03/2019, ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC., BADAMI AND TO SET ASIDE IMPUGNED ORDER DATED 06.12.2019, PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC., BADAMI IN FDP NO.03/2019 AND CONSEQUENTLY TO DIRECT THE LEARNED SENIOR CIVIL JUDGE, BADAMI TO TRY FDP NO.03/2019 AND PASS FINAL DECREE ON MERITS.

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

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3 - NC: 2024:KHC-D:18310 RFA No. 100239 of 2022

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CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This appeal is filed against the order dismissing the petition seeking final decree proceeding. The final decree proceeding is initiated pursuant to the decree in O.S.No.85/2001. The said suit was one for declaration and partition. The suit was dismissed. The decree dismissing the suit was confirmed right upto Hon’ble Supreme Court.

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The defendants in the said suit had taken a contention that suit properties are already partitioned and that contention is upheld by the trial Court and same was confirmed by the High Court and Hon’ble Supreme Court.

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The defendants in the said suit filed the final

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decree proceeding to effect division of the properties at schedule B, C and D. The respondents in the final decree proceedings, who were the plaintiffs filed objection to the final decree proceeding on the premise that the decree is not for partition. The suit being dismissed, the petition

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4 - NC: 2024:KHC-D:18310 RFA No. 100239 of 2022

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seeking final decree is not maintainable. The trial Court

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accepted the contention and dismissed the petition.

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Aggrieved by the said order, the petitioners in

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final decree proceeding are before this Court.

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Learned counsel appearing for the

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petitioners/appellants would submit that though there was a partition in respect of schedule B, C and D properties, the said partition was oral partition. There is no division by meets and bounds. Since, the partition is upheld by the Court in the previous proceeding, the petition seeking division of the properties and final decree pursuant to the oral partition is maintainable. Thus, he would urge that trial Court committed an error in dismissing the petition.

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Learned counsel appearing for the respondents

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would submit that there is no decree in favour of the petitioners/appellants to seek final decree. It is his contention that final decree proceeding is maintainable only in the event of preliminary decree enabling the final decree proceeding. Since, the respondents suit in the

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5 - NC: 2024:KHC-D:18310 RFA No. 100239 of 2022

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earlier round was dismissed, the petitioner cannot seek the final decree.

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This Court has considered the contentions

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raised at the Bar and perused the records. The following point arises for consideration:

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i. Whether the defendant in a suit for declaration and injunction, where the suit is dismissed upholding the contention that there was already a partition in the family properties can file a petition seeking final decree proceeding?

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Admittedly, that the present appellant was one

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of the defendants in the earlier suit. It was his defence

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that the partition has already taken place in the family, as such, he resisted the suit for declaration and partition. His contention was upheld and trial Court found that there was already a partition in respect of B, C and D schedule properties and dismissed the suit. The decree is confirmed right up to the Hon’ble Apex Court. Since, there is no

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6 - NC: 2024:KHC-D:18310 RFA No. 100239 of 2022

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preliminary decree in favour of any of the parties, the final decree is not maintainable.

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The petition seeking final decree is filed to demarcate the properties which are already divided. The division is already concluded and there is no question of drawing the final decree. The remedy for the present appellant is to either to file a suit for fixation of boundary or to seek a declaration of title and injunction based on the previous partition.

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For the aforementioned reasons, this Court is of the view that there is nothing wrong in the order passed by the trial Court and accordingly, this appeal is dismissed.

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However, it is made clear that the petitioners/appellants are at liberty to institute a suit for demarcation of boundary in respect of the properties allotted to his/their share and consequential relief of injunction or suit for declaration and injunction in respect of the properties allotted to his/their share in the partition

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7 - NC: 2024:KHC-D:18310 RFA No. 100239 of 2022

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which has already been concluded and upheld by the Court.

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If such a suit is filed, same shall be decided

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without being influenced by the order dismissing the petition seeking final decree proceeding or dismissal of this appeal.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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RKM

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CT: ANB List No.: 1 Sl No.: 23

Laxmawwa W/O Bhimappa Hirennavar v. Adiveppa S/O Hanamappa Hirennavar

Case brief

What is this about?

What the court decided

Laxmawwa W/O Bhimappa Hirennavar v. Adiveppa S/O Hanamappa Hirennavar

Case brief

What is this about?

What the court decided

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Issues for consideration

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