Allowed

Shri. Gurubasayya S/O Rachayya Mathad v. Sri. Dundayya Rachayya Mathad @ Hiremath

Karnataka HC5 Dec 2024RFA/100309/2018

Case brief

AI extract

What is this about?

Final decree proceeding appeal over division of Survey No.22/4. The final decree court had allotted shares in the 'B' schedule property to branches excluded from the preliminary decree. The Court held such fresh allotment beyond an untouchable preliminary decree is impermissible and set aside that decree.

What did the court decide?

Appeal allowed; FDP judgment/decree dated 26.02.2018 set aside regarding share allotted in 'B' schedule property; final decree to be drawn per preliminary decree for Gurubasayya's branch.

Shri. Gurubasayya S/O Rachayya Mathad Vs Sri. Dundayya Rachayya… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:17918 RFA No. 100309 of 2018

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 5^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. 100309 OF 2018 (FDP-)

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BETWEEN:

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SHRI. GURUBASAYYA S/O RACHAYYA MATHAD, AGE: 68 YEARS, OCC: AGRICULTURE, R/O: JINARAL, TQ: RAIBAG, DIST: BELAGAVI-591243.

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SHRI. BASAYYA S/O. RACHAYYA MATHAD, AGE: 70 YEARS, OCC: AGRICULTURE, R/O: JINARAL, TQ: RAIBAG, DIST: BELAGAVI-591243.

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GIRIJA A BYAHATTI

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Location: HIGH COURT OF KARNATAKA

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SHRI.MALAKAYYA S/O. RACHAYYA MATHAD, AGE: 65 YEARS, OCC: AGRICULTURE, R/O: JINARAL, TQ: RAIBAG, DIST: BELAGAVI-591243.

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…APPELLANTS

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(BY SRI. AKSHAY A. KATTI, SRI. PRASHANT F GOUDAR AND SRI. VIJAY PATIL, ADVOCATES)

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AND:

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SRI. DUNDAYYA RACHAYYA MATHAD @ HIREMATH, AGE: 54 YEARS, OCC: AGRICULTURE, R/O: JINARAL, TQ: HUKKERI, DIST: BELAGAVI-591243.

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SHANTAWWA W/O. GURUSIDDAYYA MATHAD, @ HIREMATH, AGE: 69 YEARS, OCC: AGRICULTURE, R/O: C/O. CHANNAYYA CHIKKAMATH, SHETIGAR CHAL, BAILHONGAL, TQ: BAILHONGL, DIST: BELAGAVI-591102.

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CHANDRAYYA S/O. GURUSIDDAYYA MATHAD @ HIREMATH, AGE: 36 YEARS, OCC: DOCTOR, R/O: C/O. CHANNAYYA CHIKKAMATH, SHETIGAR CHAL, BAILHONGAL, TQ: BAILHONGL, DIST: BELAGAVI-591102.

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SHOBHA W/O. IRAYYA MATHAD @ HIREMATH C/O. IRAYYA PUJERI, AGE: 26 YEARS, OCC: AGRICULTURE, R/O: KENGANUR, TQ: BAILHONGAL, DIST: BELAGAVI-591104.

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KU.GURUSIDDAYYA FATHER IRAYYA MATHAD @ HIREMATH, AGE: 9 YEARS, OCC: STUDENT, R/O: KENGANUR,

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TQ: BAILHONGAL, DIST: BELAGAVI-591104.

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KU.MADHU FATHER IRAYYA MATHAD @ HIREMATH, AGE: 6 YEARS, OCC: STUDENT, R/O: KENGANUR, TQ: BAILHONGAL, DIST: BELAGAVI-591104.

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IRAYYA GURUVAYYA MATHAD @ HIREMATH, AGE: 57 YEARS, OCC: CPI KSRP, R/O: POLICE QUARTERS, BELAGAVI, TQ: and DIST: BELAGAVI-590016.

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BABAYYA GURUVAYYA MATHAD @ HIREMATH, AGE: 44 YEARS, OCC: AGRICULTURE, R/O: JINARAL, TQ: HUKKERI, DIST: BELAGAVI-591243.

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RAJASHEKHAR GURUVAYYA MATHAD @ HIREMATH, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: JINARAL, TQ: HUKKERI, DIST: BELAGAVI-591243.

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ASHOK CHANNABASAYYA MATHAD @ HIREMATH, AGE: 56 YEARS, OCC: AGRICULTURE, R/O: JINARAL, TQ: HUKKERI, DIST: BELAGAVI-591243.

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GADAGAYYA CHANNABASAYYA MATHAD @ HIREMATH, AGE: 51 YEARS,

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OCC: AGRICULTURE, R/O: JINARAL, TQ: HUKKERI, DIST: BELAGAVI-591243.

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SHIVALINGAYYA CHANNABASAYY MATHAD @ HIREMATH, AGE: 46 YEARS, OCC: AGRICULTURE, R/O: JINARAL, TQ: HUKKERI, DIST: BELAGAVI-591243.

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SADANAND CHANNABASAYYA MATHAD @ HIREMATH, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: JINARAL, TQ: HUKKERI, DIST: BELAGAVI-591243.

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GURUPADAYYA CHANNABASAYYA MATHAD @ HIREMATH, AGE: 37 YEARS, OCC: AGRICULTURE, R/O: JINARAL, TQ: HUKKERI, DIST: BELAGAVI-591243.

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GURUSATAYYA IRAYYA MATHAD @ HIREMATH, AGE: 56 YEARS, OCC: AGRICULTURE, R/O: JINARAL, TQ: HUKKERI, DIST: BELAGAVI-591243

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SMT. SHOBHA W/O. RACHAYYA PURANIK, (D/O DECEASED KEMPAYYA IRAYYA MATHDA) AGE: 36 YEARS, OCC: HOUSEHOLD, R/O: NAGANUR K.D., TQ: HUKKERI, DIST: BELAGAVI-591224.

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MAHADEV GURULINGAYYA MATHAD @ HIREMATH, AGE: 56 YEARS, OCC: AGRICULTURE, R/O: JINARAL, TQ: HUKKERI, DIST: BELAGAVI-591243.

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RAJU GURULINGAYYA MATHAD @ HIREMATH, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: JINARAL, TQ: HUKKERI, DIST: BELAGAVI-591243.

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…RESPONDENTS

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(BY SRI. ASHOK C. MATHAD – R10 UNREPRESENTED; R9-SERVED BUT UNREPRESETNED NOTICE TO R1 TO R8, R11 TO R18 IS DISPENSED WITH)

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THIS RFA FILED UNDER SEC. 96 READ WITH ORDER 41 RULE 1 OF THE OF CPC., 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 26.02.2018, PASSED BY THE LEARNED SENIOR CIVIL JUDGE, HUKKERI AT HUKKERI IN FDP NO.12/2012 AND FURTHER TO DIRECT THE SENIOR CIVIL JUDGE, HUKKERI AT HUKKERI IN FDP NO.12/2012 TO DRAW UP THE FINAL DECREE IN TERMS OF THE PRELIMINARY DECREE DATED 26.09.2012 PASSED IN O.S.NO.30/2011 BY THE SENIOR CIVIL JUDGE, HUKKERI, (AS MODIFIED SUBSEQUENTLY VIDE ORDER DATED 06.11.2013 IN F.D.P.NO.12/2012) IN THE INTEREST OF JUSTICE.

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

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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 arising in a Final Decree Proceeding.

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The Final Decree Court on an application filed by respondent No.10 ordered the division of property bearing No.22/4, measuring 4 acres, Kalliguddi village, taluk Gokak in favour of all the parties to the suit, though such decree was not passed in preliminary decree which ahs attained finality.

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The final decree Court ordered division of the property bearing survey No.22/4 referred to above in favour of three branches of Gadagayya, Gurubasayya and Gurusatayya.

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Aggrieved by the aforementioned decree, the petitioners before the Final Decree Proceeding are before this Court. The genealogy of the parties is as under:-

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(Gadagayya) (Gurubassayya) (Gurusatayya)

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(Guruvayya) (Channabasasyya)

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Rachayya (Adopted)

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Irayya (R-7) Ashok (R-10) Babayya (R-8) Gadagayya (R-11) (Parvati) Rajashekhar (R-9) Shivalingayya (R-12) Sadanand (R-13) Gurupadayya (R-14) (Gurusidayya) Basayya Gurubasayya Malkayya Dundayya (A-2) (A-1) (A-3) (R-1) Shantawwa (R-2) (Irayya) (Shankrayya) (Gurulingayya) (Irayya) Chandrayya (R-3) Gurusatayya (Kempayya) Shobha (R-4) (R-15) Shobha (R-16) Gurusidayya (R-5) Madhu (R-6) Mahadev Raju (R-17) (R-18)

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Three brothers namely Gadagayya, Gurubasayya and Gurusatayya constituted a joint family. It is contended that the three brothers effected partition of joint family properties and were living separately.

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The plaintiffs who are the members of Gurubasayya’s branch filed a suit for partition and separate possession of the properties allotted to the branch of Gurubasayya. In the said suit, the plaintiffs claimed that the suit properties exclusively belonged to the branch of Gurubasayya and sought division of the properties

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among the members of Gurubasayya’s branch. In the said suit, members of Gadagayya’s branch and Gurusatayya Branch were also impleaded as parties to ensure smooth and effective partition, as the branch of Gadagayya and Gurusatayya held properties adjacent on either side of ‘A’ schedule properties, which according to the plaintiffs belonged to the branch of Gurubasayya.

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It is pleaded that in the ‘A’ schedule properties as well as in the ‘B’ schedule properties, the members of Gadagayya’s branch and Gurusatayya’s branch are having no share. In the said suit, the members of Gadagayya’s branch and Gurubasayya’s branch who were the defendants remained ex-parte.

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Thereafter, the suit is decreed granting share to the plaintiffs in both ‘A’ and ‘B’ schedule properties on the premise that said properties exclusively belonged to Gurubasayya.

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None filed appeal against the said decree. The decree holder filed Final Decree Proceeding. In the Final Decree

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Proceeding respondent No.10 who is one of the members of branch of Gadagayya filed an application stating that property bearing Survey No.22/4 which is ‘B’ schedule property is also the joint family property of three brothers Gadagayya, Gurubasayya and Gurusatayya and sought partition.

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The petitioners in the Final Decree Proceeding objected to the said prayer. The Court after holding enquiry has concluded that the said property is also the joint family property of Gadagayya, Gurubasayya and Gurusatayya and ordered partition and modified the preliminary decree.

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Learned counsel appearing for the appellants would contend that the final decree Court committed an error in going beyond the preliminary decree and could not have passed a decree contrary to the preliminary decree by awarding share in respect of ‘B’ schedule property which was denied to some of the defendants namely the members of Gadagayya’s branch and Gurusatayya’s branch. It is his contention that this property in ‘B’

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schedule is exclusively granted to the branch of Gurubasayya on account of land of Gurubasayya’s branch being acquired in a land acquisition proceeding. Merely because at one point of time the property acquired stood in the names of three brothers, it cannot be construed that the said property is the joint family property of Gadagayya, Gurubasayya and Gurusatayya at the time of acquisition.

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It is also his contention that respondent No.10 in the cross examination who is DW-10 in the FDP has admitted that the branch of Gadagayya was also allotted an agricultural land and a site after the land acquisition of erstwhile joint family property and grant is also made in favour of father of respondent No.10. It is further admitted that the said property granted to the branch of Gadagayya is enjoyed by the members Gadagayya’s branch. By referring to the evidence in the cross examination, learned counsel appearing for the appellants would contend that the grant is made in favour of all the three branches, and this being the

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position respondent No.10 could not have claimed share in the property allotted to the branch of Gurubasayya i.e. ‘B’ schedule property.

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In the alternative, he would contend that even if it is to be held that the grant is made in favour of joint family, on the same analogy the property granted to the branch of Gadagayya and Gurusatayya should also be included and without prayer for partition of those properties, respondent No.10 cannot claim partition only in the property allotted to the branch of Gurubasayya.

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It is also urged that the remaining members of the branch of Gadagayya have not raised any dispute before the trial court when the suit is filed claiming share in the ‘B’ schedule property.

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Learned counsel would also contend that the very fact that the respondent No.10 has not sought partition in respect of other properties granted to the branch of Gadagayya and Gurusatayya would indicate that the families separated long back.

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This Court has considered the contentions raised at the

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bar and perused the records.

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The following points arise for consideration;

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i) Whether the trial court is justified in granting a decree for partition in respect of ‘B’ schedule property going beyond the preliminary decree which is not under challenge?

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ii) Whether the appellants establish that the ‘B’ schedule property is the property belonging to the branch of Gurubasayya?

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The preliminary decree passed by the trial court would disclose that respondent No.10 Ashok was a party to the said proceeding. He remained ex-parte before the trial court. The trial Court granted a decree in favour of the plaintiffs and defendants No.1 to 4 in the said suit. No decree is granted in favour of defendants No.6 to 18 in the said suit. The said decree has attained finality. The defendants No.7 to 18 did not question the said decree. This being the position, the Final Decree Proceeding is initiated by the decree holders in O.S. No.30/2011. In

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the said proceeding the Final Decree Court was required to draw the final decree in terms of the preliminary decree. In case any of the parties to the said proceeding is to claim a share in the property which is not granted in the preliminary decree, the course open to the said party is to question the preliminary decree. None can seek division of the property in the final decree contrary to the terms of the preliminary decree. The modification of share in case of any arithmetical error or calculation is permissible in Final Decree Proceeding or modification of share pursuant to change of law is also permissible in Final Decree Proceeding. However, fresh allotment of share contrary to the decree passed in the preliminary decree is impermissible. The trial court is totally missed this point.

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The trial court conducted an enquiry to consider whether defendant No.10/respondent No.10 in the Final Decree Proceeding had any share in the ‘B’ schedule property. It is relevant to note that in the original suit the Court

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has not granted share to defendant No.10/respondent No.10 in the ‘B’ schedule property.

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Even in the cross examination, defendant No.10/respondent No.10 has admitted that the properties are granted to both branches of Gurubasayya and Gadagayya. It is further stated that the property granted to the branch of Gadagayya is exclusively enjoyed by the branch of Gadagayya. This being the position, the trial court could not have granted the decree for partition in respect of ‘B’ schedule property which was declined in the preliminary decree and which has attained finality.

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Even the admission in the cross examination of DW-1 would go to show that after the acquisition of land each branch of Gadagayya, Gurubasayya and Gurusatayya was allotted a separate property and properties allotted to the branch of Gadagayya and Gurusatayya are not the subject matter of the suit for partition, when the partition took place among them in respect of ancestral properties.

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For the aforementioned reasons, this Court is of the view that the judgment and decree passed by the final decree Court granting share to defendant No.10/respondent No.10 in ‘B’ schedule property are not sustainable. Accordingly, same is set-aside.

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The FDP Court shall draw the final decree pursuant to the preliminary decree without allotting any share to the parties who are not allotted share in the preliminary decree. Hence the following:

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ORDER

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i. The appeal is allowed.

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ii. The judgment and decree dated 26.02.2018 passed in FDP No.12/2012 on the file of the Senior Civil Judge at Hukkeri are set aside to the extent of direction issued to allot share in ‘B’ schedule property to the branch of

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Gadagayya and Gurusatayya.

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iii. The Final Decree Shall be drawn by allotting share to the branch of Gurubasayya as per the Preliminary Decree.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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CHS

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CT:ANB List No.: 1 Sl No.: 38

Shri. Gurubasayya S/O Rachayya Mathad v. Sri. Dundayya Rachayya Mathad @ Hiremath

Case brief

What is this about?

What did the court decide?

Shri. Gurubasayya S/O Rachayya Mathad v. Sri. Dundayya Rachayya Mathad @ Hiremath

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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