Shri.Marilingappa Basavanneppa Adarakatti Vs Shri.Andappa S/O Basavanneppa Adarakatti

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NC: 2025:KHC-D:9128 RFA No. 100010 of 2016

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 23^RD DAY OF JULY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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REGULAR FIRST APPEAL NO. 100010 OF 2016 (PAR)

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BETWEEN:

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MARILINGAPPA BASAVANNEPPA ADARAKATTI, SINCE DECEASED BY HIS LR’S.,

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1A. BASAVANEVVA

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W/O MARILINGAPPA ADARAKATTI,

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AGE: 62 YEARS, OCC: AGRICULTURE, R/O: YADIYUR SIDDALINGESHWAR NAGAR, BETGERI-582 102, TQ: AND DIST: GADAG.

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1B. RUDRANNA S/O MARILINGAPPA ADARAKATTI, AGE: 44 YEARS, OCC: AGRICULTURE, R/O: YADIYUR SIDDALINGESHWAR NAGAR, BETGERI-582 102, TQ: AND DIST: GADAG.

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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1C. RATNAVVA W/O SHANKRAPPA GUJAMAGADI, AGE: 36 YEARS, OCC: HOMEMAKER, R/O: SIDDARUDA NAGAR, ABBIGERI-582 111, TQ: RON, DIST: GADAG.

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(BY SRI. C.S. SHETTAR, ADVOCATE)

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… APPELLANTS

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AND:

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ANADAPPA S/O BASAVANNEPPA ADARAKATTI, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: BEHIND GOVT. COLLEGE, RON-582 209, DIST: GADAG.

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LAXMAVVA W/O SHEKHAPPA KUNDAGOL, SINCE DECEASED BY HER LR’S.,

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NC: 2025:KHC-D:9128 RFA No. 100010 of 2016

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HC-KAR

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2A. SHEKAPPA S/O IRAPPA KUNDGOL, AGE: 68 YEARS, OCC: AGRICULTURE, R/O: HOSPET CHOUK, GOURI GUDI ONI, BETAGERI-582 102, TQ:/DIST: GADAG.

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2B. ASHOK S/O SHEKAPPA KUNDGOL, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: HOSPET CHOUK, GOURI GUDI ONI, BETAGERI-582 102, TQ:/DIST: GADAG.

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2C. PRAKASH S/O SHEKAPPA KUNDGOL, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: HOSPET CHOUK, GOURI GUDI ONI, BETAGERI-582 102, TQ:/DIST: GADAG.

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2D. RENUKA W/O BASAVARAJ HOSABHAVI, AGE: 38 YEARS, OCC: HOME MAKER, R/O: HOSPET CHOUK, GOURI GUDI ONI, BETAGERI-582 102, TQ:/DIST: GADAG.

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SHANKARAPPA S/O BASAVANNEPPA ADARAKATTI, AGE: 47 YEARS, OCC: SERVICE, R/O: P AND T QUARTERS, RAICHUR-584 101.

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RUDRAVVA W/O SHANTVEERAPPA DESAI, AGE: 40 YEARS, OCC: HOME MAKER, R/O: HEBBALLI-580 117, TQ: AND DIST: DHARWAD.

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LAXMAPPA A/F ANDAPPA ADARAKATTI, SINCE DECEASED BY HIS LR’S.,

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5A. SUSHILA W/O LAXMAPPA ADARKATTI, AGE: 66 YEARS, OCC: HOUSEHOLD, R/O: C/O. VEERABHRADRESHWAR KIRANI STORE, NEAR HATALAGERI NAKA, GADAG-582 102.

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5B. SHAKUNTALA W/O KARISIDDAPPA GUDAGERI, AGE: 46 YEARS, OCC: HOUSEHOLD, R/O: VIVEKANAND BADAVANE, NEAR SAI TEMPLE, GADAG-582 102.

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HC-KAR

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5C. BASAVARAJ S/O LAXMAPPA ADARKATTI, AGE: 44 YEARS, OCC: SERVICE, R/O: YELAVEGI-581 118, TQ: SAVANUR, DIST: HAVERI.

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5C(I). NIRMALA W/O BASAVARAJ ADARKATTI, AGE: 50 YEARS, OCC: SERVICE, R/O: RACHOTESHWAR NAGAR, NEAR KORI’S HOME, GADAG-582 101.

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5C(II). NAVEEN S/O BASAVARAJ ADARKATTI, AGE: 16 YEARS, OCC: STUDENT, SINCE MINOR REPRESENTED BY HIS NEXT FRIEND/NATURAL GUARDIAN/MOTHER NIRMALA W/O BASAVARAJ ADARKATTI, AGE: 50 YEARS, OCC: SERVICE, R/O: RACHOTESHWAR NAGAR, NEAR KORI’S HOME, GADAG-582 101.

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5D. VEERESH S/O LAXMAPPA ADARKATTI, AGE: 42 YEARS, OCC: BUSINESS, R/O: C/O. VEERABHRADRESHWAR KIRANI STORE, NEAR HATALAGERI NAKA, GADAG-582 102.

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5E. PUSHPA @ VIJAYALAXMI W/O BASAVARAJ AMARAPPANAVAR, AGE: 36 YEARS, OCC: BUSINESS, R/O: KURTHKOTI-580 205, TQ: AND DIST: GADAG.

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1. BASAVARAJ NINGAPPA GODI, AGE: 50 YEARS, OCC: AGRICULTURE, R/O: NEAR ANNADENESHWAR MATH, MUNDARGI-582 118, DIST: GADAG.

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1. MANJUNATH NINGAPPA GODI, AGE: 50 YEARS, OCC: AGRICULTURE, R/O: NEAR ANNADENESHWAR MATH, MUNDARGI-582 118, DIST: GADAG.

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1. SHEKAPPA S/O IRAPPA KUNDGOL, AGE: 68 YEARS, OCC: AGRICULTURE, R/O: HOSPET CHOUK, GOURI GUDI ONI, BETAGERI-582 102, TQ:/DIST: GADAG.

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HC-KAR

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ASHOK S/O SHEKAPPA KUNDGOL, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: HOSPET CHOUK, GOURI GUDI ONI, BETAGERI-582 102, TQ:/DIST: GADAG.

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PRAKASH S/O SHEKAPPA KUNDGOL, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: HOSPET CHOUK, GOURI GUDI ONI, BETAGERI-582 102, TQ:/DIST: GADAG.

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RENUKA W/O BASAVARAJ HOSABHAVI, AGE: 38 YEARS, OCC: HOMEMAKER, R/O: HOSPET CHOUK, GOURI GUDI ONI, BETAGERI-582 102, TQ:/DIST: GADAG.

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… RESPONDENTS

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(BY SRI. ANAND KUMAR A. MAGADUM, ADVOCATE FOR R1, R3, R4, R5A, R5B, R5D AND R5E; SRI. S.S. KOLIWAD, ADVOCATE FOR R6 AND R7; R2A AND R2B ARE SERVED; R2C AND R2D-HELD SUFFICIENT;

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SRI. S.B. DODDAGOUDAR, ADVOCATE FOR R8 TO R11 [VAKALAT NOT FILED]; R5C(I) AND R5C(II)-DISPENSED WITH)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 OF CPC, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED: 14.08.2012 PASSED IN O.S. NO.29/2011 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, GADAG AND ALLOW THE APPEAL WITH COSTS THROUGHOUT BY DECREEING THE SUIT IN OS NO.29/2011.

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

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NC: 2025:KHC-D:9128 RFA No. 100010 of 2016

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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This Regular First Appeal is filed by the plaintiff challenging the judgment and decree dated 14.08.2012 passed in O.S.No.29/2011 on the file of Principal Senior Civil Judge and CJM, Gadag (for short, ‘Trial Court’), thereby, the suit fled for partition and separate possession is dismissed with costs.

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For the sake of convenience and easy reference,

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the parties are referred to as per their rankings before the Trial Court.

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The genealogy of the plaintiff’s family is as under:

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Basavenneppa (died in the year 1981) Iravva (died 12 years back)

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Laxmappa Marilingappa Andappa Laxmavva Shankarappa Raudrava (D-5) (Plff) (D-1) (D-2) (D-3) (D-4)

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It is contended that the suit schedule properties

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are ancestral and joint family properties. Therefore, claiming 1/5^th share in all the properties, the plaintiff has filed the suit

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for partition. The defendants have filed their written statement denying the case of plaintiff. It is contended that all the suit properties were not included in the suit and also necessary parties have not been made as parties in the suit.

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Based on the pleadings of the parties, the Trial Court has framed the following:

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ISSUES

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1. Whether genealogy is proved?

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1. Whether the plaintiff proves that she has got 1/5 share of property?

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1. Whether the plaintiff proves that defendant No.5 has no right, interest or concern to the suit properties, since he went in adoption?

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Whether the defendants No.1, 3 to 5 prove that defendant No.5 went in adoption to Andappa who is the brother of Basavanneppa, thus, defendant No.5 has got share?

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Whether defendant No.1, 3 to 5 prove the previous partition of the year 1981 and 2010 as pleaded in their written statement?

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1. Whether the defendant Nos.1, 3 to 5 prove that the suit is not maintainable?

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1. Whether the defendant No.6 and 7 prove that they are bonafide purchasers?

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1. Whether the plaintiffs entitled for the relief?

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1. What order or decree?

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The plaintiff was examined as PW.1 and got

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marked 7 documents as Ex.P1 to Ex.P7. Defendant Nos.6 and 5 were examined as DW.1 and DW.2 and got marked 28 documents as Ex.D1 to Ex.D28.

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The Trial Court dismissed the suit on the reason that the plaintiff has not included all the ancestral and joint family properties and also, did not include necessary parties in the suit. Thus, the suit is not maintainable for partial partition and without their being necessary parties. Against the decision of the suit the plaintiff has filed the appeal by raising various grounds.

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The learned counsel for the plaintiff/appellant submitted that though the suit filed for partition is not

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maintainable, the Trial Court ought to have given an opportunity to the plaintiff to include all the ancestral and joint family properties and also, to arraign necessary parties in the suit. But without being so, dismissed the suit by curtailing right of the plaintiff to claim share. Therefore, prays to remand the case to the Trial Court by placing reliance on the judgment of the Hon’ble Division Bench of this Court in RFA No.3012/2011 dated 24.02.2014 between Basavanneppa and Others and Shri. Ningappa and Others.

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On the other hand, the learned counsel for the respondents/defendants justified the judgment and decree and prays to dismiss the appeal.

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Upon hearing the arguments and on perusal of evidence on record, the points that arise for consideration are as follows:

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i) Whether, under the facts and circumstances involved in the case, the suit is maintainable for partial partition and non impleading necessary parties?

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ii) Whether, under the facts and circumstances involved in the case, the suit is liable to be remanded to the Trial Court by directing parties to include all the ancestral and joint family properties and impleading all the necessary parties?

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iii) Whether the judgment and decree passed by the Trial Court requires any interference of this Court?

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The plaintiff has filed the suit for partition only in respect of three suit lands. It is the contention of defendants that their family still has some more properties, which are not included in the suit. Thus, it is the case of defendants that, suit for partial partition is not maintainable. Also, there are other necessary parties, who are Jayalaxmi, being purchaser of one of the property and branch of Anandappa, who is the adopted father of Laxmava. Therefore, the Trial Court dismissed the suit on the reason that the suit for partial partition is not maintainable by not including all the properties and arraigning other necessary parties.

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Though the suit for partial partition is not maintainable and the judgment and decree passed by the Trial Court is justifiable, but dismissing the suit virtually amounts to curtailing the right of plaintiff to claim share in all the properties. In the similar facts and circumstances, the judgment of the Hon’ble Division Bench of this Court in RFA No.3012/2011 dated 24.02.2014 (supra), has observed at paragraph No.14 as follows:

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Point No.3: Similarly, the defendant has set out in the written statement that the properties which are acquired by the various members of the family, which is admitted by the PW5 in his evidence, the properties which are standing in the name of the plaintiffs also are not made subject matter of the suit. Unless all the properties of the family are made subject matter of the suit, no effective decree for partition can be passed by the Court. If any property is not included, the plaintiff has to set-out the reasons for non-inclusion of the family properties. If there are any circumstances to justify such exclusion, it has to setout. Therefore, the trial Court is justified in holding the suit is bad for non-inclusion of the family properties in the suit. However, it is well settled

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NC: 2025:KHC-D:9128 RFA No. 100010 of 2016

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that if suit is dismissed for non-joinder of necessary parties and non-inclusion of the properties in the suit, the plaintiff can file one more suit by including all the properties and including all the properties in the suit such a suit is not barred. Under these circumstances, we are of the view that in spite of upholding the dismissal of the suit, it would be appropriate to set-aside the judgment and decree on all issues and remand the matter to the trial Court giving an opportunity to the plaintiffs to include all the parties and include all the properties in the suit. If it is done, prosecute the same in the presence of the family members and effective decree can be passed.”

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Therefore, I am of the opinion that though the suit may have been rightly dismissed, but liberty ought to be given to the plaintiff to include all the properties and arraying all the necessary parties in the suit by making suitable amendments of plaint and filing necessary applications as per law and then directing the Trial Court to consider the same in accordance with law and pass an appropriate orders. Therefore, the case is remanded to the Trial Court for fresh consideration with liberty to the plaintiff

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to include all the ancestral and joint family properties including the properties sold to Jayalaxmi and other necessary parties. Hence, I answer point No.(i) in the ‘negative’ and point Nos.(ii) and (iii) in the ‘affirmative’.

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