Partly allowed

Shri.Narayan Rayappa Kadam v. Shri.Sanju Rudrappa Kadam

Karnataka HC12 Sept 2024RFA/100546/2019

Case brief

AI extract

What is this about?

The High Court allowed part of the appeal against a trial court decree in a partition suit. It set aside the judgment because an incorrect issue wrongly burdened the plaintiffs with proving the absence of a prior partition, while the defendants claimed a partition occurred in 1992.

What did the court decide?

The appeal allowed in part; trial court judgment set aside; matter remitted to frame new issue regarding proof of prior partition and decide afresh.

Shri.Narayan Rayappa Kadam Vs Shri.Sanju Rudrappa Kadam — Partition | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019

¶2

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶3

DATED THIS THE 12^TH DAY OF SEPTEMBER, 2024

¶4

PRESENT

¶5

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

¶6

AND

¶7

THE HON'BLE MR. JUSTICE C M JOSHI

¶8

REGULAR FIRST APPEAL NO. 100546 OF 2019 (PAR/POS)

¶9

BETWEEN:

¶10

SHRI. NARAYAN RAYAPPA KADAM AGE: 64 YEARS, OCC: RETIRE PERSON, R/O: POLICE QUARTERS, BELAGAVI, NOW AT MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI.

¶11

…APPELLANT

¶12

(BY SRI. SANTOSH B. RAWOOT, ADVOCATE)

¶13

AND:

¶14

Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA

¶15

SHRI. SANJU RUDRAPPA KADAM AGE: 33 YEARS, OCC: AGRICULTURE, R/O: MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI.

¶16

SHRI. UMESH RUDRAPPA KADAM AGE: 32 YEARS, OCC: AGRICULTURE, R/O: MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI.

¶17

KUMAR RUDRAPPA KADAM AGE: 30 YEARS, OCC: AGRICULTURE, R/O: MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI-587113.

¶18

SMT.RADHABAI W/O. RUDRAPPA KADAM AGE: 70 YEARS, OCC: HOUSEHOLD,

¶19

2 - NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019

¶20

R/O: MUGALKHOD, TQ: RAIBAG,

¶21

DIST: BELAGAVI-587113.

¶22

SMT. MAHADEVI W/O. MAHADEV MAVARKAR AGE: 37 YEARS, OCC: HOUSEHOLD, R/O: MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI-587113.

¶23

SMT. SUSHILA W/O. GUNDU KATADOND AGE: 37 YEARS, OCC: HOUSEHOLD, R/O: LACHAN, TQ: INDI, DIST: VIJAYAPURA.

¶24

SMT. KALAWATI W/O. PANDIT DHADAKE AGE: 47 YEARS, OCC: HOUSEHOLD, R/O: KOKATANUR, TQ: ATHANI, DIST: BELAGAVI.

¶25

SMT. SUNANDA W/O. SHIVAJI NARAYANKAR AGE: 48 YEARS, OCC: HOUSEHOLD, R/O: ALMEL, TQ: SINDAGI, DIST: VIJAYAPURA.

¶26

KUMARI SHOBHA D/O. RUDRAPPA KADAM AGE: 22 YEARS, OCC: AGRICULTURE, R/O: MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI.

¶27

SHRI. VASANT RUDRAPPA KADAM AGE: 62 YEARS, OCC: AGRICULTURE, R/O: MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI.

¶28

SHRI. BABU W/O. RAYAPPA KADAM AGE: 57 YEARS, OCC: AGRICULTURE, R/O: MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI.

¶29

SHRI. MARUTI RUDRAPPA KADA, AGE: 50 YEARS, OCC: AGRICULTURE, R/O: MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI.

¶30

3 - NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019

¶31

SMT.GOURAWWA W/O. PUNDALIK SOLONE SINCE DECEASED BY LR’S.,

¶32

13A) SMT. CHANDRAVVA W/O. MARUTI KADAM, AGE:50 YEARS, OCC: AGRICULTURE, R/O: MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI.

¶33

SMT. DUNDAWW W/O. BHIMAPPA POL AGE: 37 YEARS, OCC: HOUSEHOLD, R/O: NIPANAL, TQ: RAIBAG, DIST: BELAGAVI.

¶34

SMT. TAYAWWA W/O. BHIMSEN POL AGE: 40 YEARS, OCC: HOUSEHOLD, R/O: NIPANAL, TQ: RAIBAG, DIST: BELAGAVI.

¶35

SMT. YASHODA W/O. DAYANAND JOGADANDE AGE: 38 YEARS, OCC: HOUSEHOLD, R/O: MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI.

¶36

SHRI. YAMANAPPA NINGAPPA KADAM AGE: 86 YEARS, OCC: HOUSEHOLD, R/O: MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI.

¶37

SMT.BASAWWA W/O. KADAPPA MAVARKAR AGE: 82 YEARS, OCC: HOUSEHOLD, R/O: BASAVANA BAGEWADI, DIST: VIJAYAPURA.

¶38

SMT.SHIVAKKA W/O. LIMBAJI KADAM AGE: 77 YEARS, OCC: HOUSEHOLD, R/O: MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI-587113.

¶39

4 - NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019

¶40

SHRI. APPAJI S/O. RUDRAPPA KADAM AGE: 62 YEARS, OCC: HOUSEHOLD, R/O: MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI.

¶41

SMT. KAMALAVVA W/O. RAMU MAVARKAR AGE: 53 YEARS, OCC: AGRICULTURE, R/O: HULLUR, TQ: MUDALAGI, DIST: BELAGAVI.

¶42

SHRI.NINGAPPA LIMBAJI KADAM AGE: 42 YEARS, OCC: AGRICULTURE, R/O: MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI.

¶43

SHRI. PARASAPPA NINGAPPA KADAM AGE: 74 YEARS, OCC: AGRICULTURE, R/O: MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI-587113.

¶44

…RESPONDENTS

¶45

(BY SRI. RAJASHEKHAR R. BURJI, ADVOCATE FOR R1 TO 9; R10 TO R12, R15 TO R17, R19, R22, R23, R13(A) SERVED AND UNREPRESENTED; R13-ABATED;

¶46

R14, R18, R20 AND R21-NOTICE HELD SUFFICIENT)

¶47

THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED 11.09.2019 PASSED IN O.S.NO.1/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG, DECEEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

¶48

THIS APPEAL, COMING ON FOR FINAL HEARING, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶49

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

¶50

THE HON'BLE MR. JUSTICE C M JOSHI

¶51

¶52

NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019

¶53

ORAL JUDGMENT

¶54

(PER: THE HON'BLE MR. JUSTICE C M JOSHI)

¶55

We have heard the learned counsel appearing for the appellant Sri.Santosh B. Rawoot and the learned counsel Sri.Rajashekar R. Burgi appearing for respondent Nos.1 to 9.

¶56

Though the matter is listed for admission, with the consent of both the parties, matter is taken up for final disposal.

¶57

Being aggrieved by the judgment and decree for partition in OS No.1/2017, defendant No.1 is before this Court in an appeal.

¶58

The factual matrix that is relevant for the purpose of this appeal is that the grand father of the appellantNingappa was the propositus of the family. He died on 24.08.1972 leaving behind him five sons and two daughters. The suit schedule properties were held by the propositus Ningappa. After his death all the suit schedule properties devolved upon the members of the joint family. The plaintiffs contend that the suit schedule properties, which consists of

¶59

6 - NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019

¶60

seven pieces of agricultural lands and three house properties has devolved upon the five sons and two draughts of Ningappa and therefore, the plaintiffs who are representing the branch of one of the son of Ningappa viz., Rudrappa are entitled for equal share. The defendant Nos.1 to 8 represent the branch of Rayappa, the first son of Ningappa. Defendant Nos.9, 10, 11, 12 and 13 are the other sons and daughters of Ningappa.

¶61

On appearance, the defendant No.1 through his written statement contended that though Ningappa is the propositus who died in the year 1972 leaving behind him five sons and two daughters, the suit schedule properties were partitioned in the year 1992 between the five sons of Ningappa. Each of them got 1/5^th share. Therefore, there was a partition between the sons for which the daughters of propositus Ningappa had consented. After partition, defendant Nos.1 to 4 have constructed a building in one of the suit schedule properties and they are in separate possession and enjoyment of the property and as such the suit is liable to be dismissed.

¶62

¶63

NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019

¶64

On the basis of the above pleadings, the Trial Court framed the following issues:

¶65

ISSUES:

¶66

1. Whether the plaintiffs prove that, the suit schedule properties are the ancestral joint family properties of plaintiffs and defendants and there was no partition between them as on the date of suit?

¶67

2. Whether the defendants prove that, the defendants perfect title by way of adverse possession?

¶68

3. Whether the plaintiffs are entitled for partition and separate possession by metes and bounds, if so, what is their share?

¶69

4. What judgment or decree?

¶70

The plaintiffs in order to prove their case examined first plaintiff as PW.1 and a witness as PW.2 and Exhibits P1 to P9 were marked. The first defendant was examined as DW1 and a witness was examined as DW2 and Exhibits D1 to D27 were marked. After hearing both the sides the Trial Court decreed the suit.

¶71

Being aggrieved by the judgment and decree passed by the Trial Court, defendant No.1 is in appeal before this

¶72

8 - NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019

¶73

Court contending that though he had contended in his written statement that there was a partition between the five sons of propositus Ningappa, no issue is framed by the Trial Court in this regard. It is submitted that though a specific contention was taken up by the defendant No.1 in his written statement, the issue regarding the previous partition has not been framed which had led the Trial Court to rely only on the alleged admissions of the DW.1 and there was no such opportunity for the defendants to establish their case. Therefore, it is contended that the Trial Court could not have decided an issue which was negatively burdened upon the plaintiffs who are called upon to show that there was no partition between them as on the date of the suit. Further, it was also contended that the non-framing of an issue under which the defendants were to prove that there was a previous partition has resulted in a skewed approach by the Trial Court and by a short judgment, the Trial Court has decreed the suit.

¶74

Per contra, the leaned counsel appearing for the respondent Nos.1 to 9 Sri.Rajashekar Burji concede that it

¶75

9 - NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019

¶76

was necessary that an issue regarding previous partition should have been framed but such negative burden could not have been fastened upon the plaintiffs that there was no partition. Therefore, the manner in which the issue No.1 is framed is not proper and correct.

¶77

Having bestowed our attention on the points urged by both the sides, it is evident that the issue No.1 framed by the Trial Court is not proper. There is a specific contention of all the defendants that there was a previous partition and as such they should have been called upon to prove that there was a partition. However, instead of fastening the burden of proving the previous partition on the defendants, the negative burden was fastened upon the plaintiffs that there was no such partition, which obviously has resulted in the defendants not placing adequate evidence on record. Therefore, evidently, the approach adopted by the Trial Court to hold that there was no partition in the family is erroneous.

¶78

The learned counsel appearing for the respondents also submits that there are few other properties which were

¶79

10 - NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019

¶80

also left out. Be that as it may, when an issue is wrongly framed fastening the negative burden on the plaintiffs has resulted in a decree; obviously the Trial Court was misdirected to hold that the plaintiffs have not proved it. Under the facts and circumstances, this Court is of the view that an incorrect issue framed goes to the root of the case and defendants should have been burdened with proving that there was a previous partition. Under the circumstances, we hold that the matter needs to be remitted back to the Trial Court with a direction that an appropriate issue fastening the burden on the defendants to prove that there was a previous partition is to be framed and after affording an opportunity to the parties, the matter be decided in accordance with law. Hence, the following:

¶81

ORDER

¶82

i) The appeal is allowed in part.

¶83

ii) The judgment of the trial Court in OS No.1/2017 on

¶84

the file of Senior Civil Judge and JMFC., Raibag is hereby set aside. The matter is remitted back to the Trial Court with

¶85

11 - NC: 2024:KHC-D:13042-DB RFA No. 100546 of 2019

¶86

a direction to frame an issue fastening the burden of proving that there was a previous partition in the suit schedule properties in the year 1992 and then permit the parties to adduce any additional evidence in the matter and then decide the matter afresh.

¶87

iii) Both the parties are directed to appear before the Trial Court on 22.10.2024 without awaiting for any notice by the Trial Court.

¶88

iv) We request the Trial Court to dispose of the matter expeditiously, preferably within six months from the date of appearance of the parties before it.

¶89

Sd/(B.M.SHYAM PRASAD) JUDGE

¶90

Sd/(C M JOSHI) JUDGE

¶91

HMB LIST NO.: 1 SL NO.: 6

Shri.Narayan Rayappa Kadam v. Shri.Sanju Rudrappa Kadam

Case brief

What is this about?

What did the court decide?

Shri.Narayan Rayappa Kadam v. Shri.Sanju Rudrappa Kadam

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

Similar cases

Smt. Sumitra W/O. Ramanayak Patil Vs Sri. Ramanayak S/O. Dharamanayak Patil

Sri. Kallappa S/O. Basavana Gouda Vs Smt. Kamalamma @ Kamalakshi W/O. Late Ningappa

Virupakshappa S/O Lage Veerasangappa Halligudi Vs Smt. Nanda D/O Sharanaappa Halligudi

Jagadish Krishnarao Kulkarni Vs Smt. Sarojini W/O Vitthal Ankalekar

Jagadish Krishnarao Kulkarni Vs Smt. Sarojini W/O Vitthal Ankalekar

State of Karnataka Vs Nagi Reddy S/O Eranna