Dismissed

Smt Basamma W/O Sidramayya Gowdar v. Smt Siddalingamma W/O Veerabhadrayya Nandavadagi

Karnataka HC27 Aug 2024RFA/100241/2024

Case brief

AI extract

What is this about?

The High Court dismissed the appeal for partition. The Court held that the claim was not decided on merits because plaintiffs failed to prove ancestral nature of properties. It allowed dismissal with liberty to file a fresh suit.

What did the court decide?

The appeal disposed of with liberty to the appellants to file a fresh suit for partition for all just exceptions.

Smt Basamma W/O Sidramayya Gowdar Vs Smt Siddalingamma W/O… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:12148-DB RFA No. 100241 of 2024

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 27^TH DAY OF AUGUST, 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.100241 OF 2024 (PAR/POS)

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BETWEEN:

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SMT. BASAMMA W/O. SIDRAMAYYA GOWDAR, AGE: 76 YEARS, OCC: HOME MAKER, R/O. MARATAGERI, TQ: HUNGUND, DIST: BAGALKOT-587118.

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SMT. SANGAMMA W/O. VIRESHAYYA HIREMATH, AGE: 71 YEARS, OCC: HOME MAKER, R/O. HESARUR, POST: DOTIHAL, TQ: KUSTAGI, DIST: KOPPAL-583231.

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Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD Date: 2024.09.26 10:19:15 +0530

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SMT. GANGAMMA W/O. SIDDALINGAYYA OLI, AGE: 66 YEARS, OCC: HOME MAKER, R/O. OMKARESHWAR GUDI, MEDAR ONI, 32^ND WARD, DAM ROAD, HOSAPETE, DIST: BALLARI-583201.

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APPELLANTS

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(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE)

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AND:

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SMT. SIDDALINGAMMA, W/O. VEERABHADRAYYA NANDAVADAGI, AGE: 54 YEARS, OCC: HOME MAKER, R/O. MARATAGERI, TQ: HUNAGUND, DIST: BAGALKOT-587118.

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SRI. MADIVALAYYA, S/O. MAHANTAYYA NANDAVADAGI, AGE: 58 YEARS OCC: AGRICULTURE, R/O: MARATAGERI, TQ: HUNAGUND,

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2 - NC: 2024:KHC-D:12148-DB RFA No. 100241 of 2024

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DIST: BAGALKOT, NOW RESIDING AT KHANIHAL, POST: UPPALADODDI, TQ: SINGHANUR, DIST: RAICHUR-584128.

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SMT. MAHANTAMMA W/O. BASAYYA SAHUKAR, AGE: 41 YEARS OCC: HOME MAKER, R/O. KANDAKUR, TQ: KUSTAGI, DIST: KOPPAL-583231.

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SMT. AMARAMMA W/O. SOMAYYA EDEYUR, AGE: 50 YEARS OCC: HOME MAKER, R/O. NANDAPUR, TQ: KUSTAGI, DIST: KOPPAL-583231.

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SMT. SHIVALINGAMMA, W/O. SHARANAYYA SHASHI, AGE: 46 YEARS OCC: AGRICULTURE, R/O. VANAGERI, TQ: YALABURGA, DIST: KOPPAL-583231.

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SRI. CHANNABASAYYA, S/O. RUDRAYYA NANDAPUR, AGE: 54 YEARS, OCC: AGRICULTURE, R/O. NANDAPUR, TQ: KUSTAGI, DIST: KOPPAL-583231.

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SRI. SHARANAYYA S/O. RUDRAYYA NANDAPUR, AGE: 36 YEARS, OCC: AGRICULTURE, R/O. NANDAPUR, TQ: KUSTAGI, DIST: KOPPAL-583231.

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SMT. MAHANATAMMA W/O. RAMAPPA KARADI, AGE: 53 YEARS OCC: HOME MAKER, R/O. MARATAGERI, TQ: ILKAL, DIST: BAGALKOT-587125.

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RESPONDENTS

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(NOTICE TO R1 TO R3, R5, R8 - SERVED & UNREPRESENTED; NOTICE TO R4 IS DISPENSED WITH; NOTICE TO R6 AND R7 – HELD SUFFICIENT)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 05.07.2023 PASSED IN O.S.NO.60/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUNAGUND, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION & ETC.

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3 - NC: 2024:KHC-D:12148-DB RFA No. 100241 of 2024

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THIS REGULAR FIRST 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 AND THE HON'BLE MR. JUSTICE C M JOSHI

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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 plaintiffs in O.S. No. 62/2018 on

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the file of the Senior Civil Judge and J.M.F.C., Hunagund [for short, the ‘civil Court’ ]. The civil Court by the impugned judgment and decree dated 05.07.2023 has dismissed the appellants’ suit for partition. The civil Court, taking note of the fact that all the defendants except one defendant has remained ex-parte and even the defendant who has entered appearance has not filed Written Statement, has framed points for consideration which require the appellants to show that the suit schedule properties [agricultural lands] together measuring about 17 acres [in Maratageri village, Ilkal Hobali, Hungund Taluk] are ancestral properties.

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The civil Court has opined that it cannot

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answer such points for consideration in favour of the

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4 - NC: 2024:KHC-D:12148-DB RFA No. 100241 of 2024

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appellants because they have not produced any document to show that these properties stand in the name of the family members and the revenue records produced do not pertain to the suit schedule properties. This Court cannot take exception with the civil Court’s conclusions when the manner in which the suit is conducted on behalf of the appellants is examined.

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Sri Hanumanthareddy Sahukar, the learned

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counsel for the appellants, submits that this Court may take note of the fact that the appellants are senior citizens who are not literate, that they have been assisted by a member of the Bar who may have failed to produce relevant documents, that the appellants have now produced all the revenue records which relate to the suit schedule properties; and these records show that the lands are within the family fold.

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Sri Hanumanthareddy Sahukar submits

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that the appellants’ specific case is that Sri Mahantayya is the propositus of the family and he has left behind Sri Veerabhadrayya whose wife is one of the defendants/

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5 - NC: 2024:KHC-D:12148-DB RFA No. 100241 of 2024

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respondents; that Sri Mahantayya has also left behind another daughter, Smt. Channa Veeramma, who is no more, and her children are on record as the first to seventh respondents. The learned counsel further submits that this Court may consider the petitioners’ applications filed under Order XLI Rule 27 CPC for leave to produce revenue records as additional documents to enable in view of the appellant’s specific case as aforesaid.

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In the light of the circumstances canvassed,

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the point for consideration in the present appeal would be:

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Whether this Court must extend an opportunity in the circumstances recorded by the civil Court and pleaded by Sri Hanumanthareddy Sahukar on behalf of the appellants ?

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This Court must opine that the appellants

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were indeed aged about 60 years even as of the year 2018 and they are all homemakers from rural background as is contended. Their suit is rejected because they have not been able to place on record the material to show that the subject properties are within the family fold. The appellants

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6 - NC: 2024:KHC-D:12148-DB RFA No. 100241 of 2024

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contend before this Court that the documents indeed were made over to the learned counsel but that is not produced in evidence. The documents now produced as additional evidence are seen. The appellants have filed the suit in respect of the following properties.

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Sy. No. 70/1*/1 - 3.13 acres 2. Sy. No. 70//5 - 3.13 acres 3. Sy. No. 112//1B - 1.16 acres 4. Sy. No. 112//4 - 1.16 acres 5. Sy. No. 122//5 - 3.26 acres 6. Sy. No. 122/*/1 - 3.26 acres

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However, the appellants have not produced documents in respect of the land in Sy. No. 70/5, 112/4 and 122/5. The appellants have now produced some documents in the present proceedings, but these documents will not help the appellants because necessary circumstances are not pleaded to show how the land in Sy. No. 70/5, 112/4 and 122/5 would partake the nature of being either ancestral or joint family properties. The plaint is obviously silent in these regards.

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7 - NC: 2024:KHC-D:12148-DB RFA No. 100241 of 2024

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This Court, in the light of the afore and the

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fact that there is no decision on merits, is of the considered view that the appellants’ claim for partition is not decided on merits by the civil Court and cannot be decided even if the application is allowed accepting the documents and remanding the matter back for adjudication. This Court is of the considered view that the appeal must be disposed of with liberty to the appellants to file a fresh suit observing that in the present proceedings there is no adjudication on the merits of the claim for partition of the suit schedule properties to impede any further suit. Hence, the following order.

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ORDER

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[A] The appeal stands disposed of with liberty to the appellants to file suit for partition, subject to all just exceptions. The office is directed to return the documents produced to the learned counsel for the appellants.

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8 - NC: 2024:KHC-D:12148-DB RFA No. 100241 of 2024

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[B] The pending application stands disposed of in terms of this order, and there shall be no

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costs.

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Sd/(B.M.SHYAM PRASAD) JUDGE

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Sd/(C.M.JOSHI) JUDGE

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BVV / Ct:vh List No.: 1 Sl No.: 24

Smt Basamma W/O Sidramayya Gowdar v. Smt Siddalingamma W/O Veerabhadrayya Nandavadagi

Case brief

What is this about?

What did the court decide?

Smt Basamma W/O Sidramayya Gowdar v. Smt Siddalingamma W/O Veerabhadrayya Nandavadagi

Case brief

What is this about?

What did the court decide?

What the court decided

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