Smt. Sushavva W/O Siddappa Rendale Vs Smt. Nilavva W/O Dattu Patole

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1 - NC: 2025:KHC-D:9703 RFA No. 100022 of 2018

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 04^TH DAY OF AUGUST, 2025 BEFORE

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100022 OF 2018 (DEC/POS)

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BETWEEN:

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SMT. SUSHAVVA W/O SIDDAPPA RENDALE AGE: 55 YEARS, OCC: HOUSEHOLD, R/O: KERUR-591283,

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TQ: CHIKODI, DIST: BELAGAVI.

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SMT. LAXMIBAI @ PARVATI W/O MAHADEV KHADE, AGE: 49 YEARS, OCC: HOUSEHOLD, R/O: KANAGALA-591225, TQ: HUKERI, DIST: BELAGAVI.

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SMT. SUKHAVANTI YALLAPPA MARALAKKANAVAR AGE: 48 YEARS, OCC: HOUSEHOLD, R/O: MUTNAL-591109, TQ & DIST: BELAGAVI.

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SMT. ANNAPURNA ANNAPPA TABBANNAGOL AGE: 45 YEARS, OCC: AGRICULTURE, R/O: AWARGOL-591309,

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TQ: HUKERI, DIST: BELAGAVI.

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…APPELLANTS

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MOHANKUMAR B SHELAR

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Digitally signed by MOHANKUMAR B SHELAR Date: 2025.08.30 15:44:37 +0530

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(BY SRI. K.H BAGI, ADV)

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AND:

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SMT. NILAVVA W/O DATTU PATOLE AGE: 73 YEARS, OCC: HOUSEHOLD, R/O: DEVAGIRI-591143, TQ & DIST: BELAGAVI.

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SMT. SHOBHA W/O DUNDAPPA KAMATNURI AGE: 49 YEARS, OCC: HOUSEHOLD, R/O: DEVAGIRI-591143, TQ & DIST: BELAGAVI.

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SHRI. DUNDAPPA A/F BASAPPA KAMATNURI AGE: 51 YEARS, OCC: AGRICULTURE, R/O: DEVAGIRI-591143, TQ & DIST: BELAGAVI.

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SMT. MAHADEVI W/O APPASAB SHIPURE AGE: 53 YEARS, OCC: HOUSEHOLD, R/O: HOSUR-416508, TQ: GADHAHINGLAJ,

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2 -

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NC: 2025:KHC-D:9703 RFA No. 100022 of 2018

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HC-KAR

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DIST: KOLHAPUR, MAHARASHTRA STATE, NOW R/AT: "DAWALKAR SADAN", KHINDIPADA, DARGA ROAD, SHAIKH NAKA, BANDUP MUMBAI-400007.

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…RESPONDENTS

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(BY SRI. VITTHAL S. TELI, ADV FOR R2 & R3 NOTICE TO R1 & R4 ARE SERVED)

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RFA FILED UNDER ORDER 41 RULE 1 OF CPC READ WITH SECTION 96 (1) OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DTD:07.10.2017 PASSED IN O.S.NO.190/2014 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE AND CJM, BELAGAVI AND ALLOW THE APPEAL WITH COSTS THROUGHT BY DECREEING THE SUIT IN OS.NO.190/2014 ON THE FILE FO THE I ADDL. SENIOR CIVIL JUDGE & CJM, BELAGAVI.

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

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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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This Regular First Appeal is filed by the appellants challenging the judgment and decree dated 07.10.2017 passed in O.S.No.190/2014 by the I Addl. Senior Civil Judge and CJM, Belagavi.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellants and respondent No.4 were the plaintiffs and respondents No.1 to 3 are the defendants No.1 to 3.

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HC-KAR

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Brief facts leading rise to the filing of this

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Regular First Appeal, are as follows:

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The plaintiff filed a suit for partition and separate possession against the defendants. It is the case of the plaintiffs that one Dattu Patole was the propositus. He died, leaving behind his wife/defendant No.1 and daughters/plaintiffs No.1 to 5, and defendant No.3 is the son who was given in adoption to one Smt. Shivubai Basappa Kamagnuri of Devagiri village. Defendant no.2 is the wife of Defendant no.3 the suit schedule properties were cultivated by Dattu as a tenant and later on, occupancy rights were granted to him, and he was the owner. After his death, the name of his wife/defendant No.1 was entered. The plaintiffs and defendant No.1 are in joint possession of the suit properties. Defendant No.2 is the daughter in law and schemy lady, by taking simple nature of defendant No.1, got executed three registered sale deeds on 06.06.2013. By misrepresentation and fraud, had got transferred the property in her name.

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Defendant No.1 went to the house of plaintiff No.5 and told her about the entry of the name of defendant No.2. When the plaintiffs came to Belagavi and took out all the documents, they learnt about the sale deeds. The plaintiffs requested the defendants to cancel the registered sale deeds and grant a share to the plaintiffs. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, the plaintiffs pray to decree the suit.

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Summons were issued to the defendants.

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Defendant No.1 filed a written statement, admitting the contents of the plaint and contended that defendant No.2, by misrepresentation and fraud, obtained the registered sale deeds. It is also contended that she has not received any sale consideration from defendants No.2 and 3. It is contended that defendant No.1 filed an applications in Misc.Nos.32/2014 to 34/2014, seeking permission to sue

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in the form of pauperis against defendants No.2 and 3 for cancellation of three sale deeds and the same are pending.

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It is contended that R.S.No.131/1, measuring 2 acres 24 guntas, was owned by her husband and converted into sites during his lifetime and he sold all the plots for the construction of houses. Hence, it is contended that R.S.No.131/1 was not in her ownership and possession. Hence, she prayed to dispose of the suit.

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Defendants No.2 and 3 filed a written statement

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denying the averments made in the plaint and admitted that the original propositus Dattu Patole was the owner of the suit lands. After his death, defendant No.1 filed a varasa application mentioning the names of the plaintiffs and without showing the name of defendant No.2. The present plaintiffs consented on 02.08.2006 to enter the name of defendant No.1 by deleting the name of Dattu. Accordingly, the name of defendant No.1 was entered in the revenue records. She sold the suit properties in favour of defendants No.2 and 3. The defendants No.2 and 3 became the absolute owners of the suit schedule properties and it is contended that the defendant No.3 was

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never given in adoption and he is the Class I heir of Dattu

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Pathole. It is contended that the plaintiffs have not included all the properties in the suit. Hence, pray to dismiss the suit against defendants No.2 and 3.

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The trial Court, based on the pleadings of the

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parties, framed the following issues:

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1. Whether the plaintiffs prove that the suit properties are the joint family properties of parties to the suit and they have been in joint possession of the same?

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2. Whether the plaintiffs prove that Defendant No.3 is given in adoption to Smt. Shivubai w/o Basappa Kamatnuri of Devagiri and he has last all his right in the properties of genitive family?

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3. Whether the plaintiffs prove that Defendant No.2 got executed the sale deeds from Defendant No.1 by exercising undue influence, fraud. coercion etc. and hence they are not binding on them?

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4. Whether the plaintiffs are entitled for any share in the suit properties? If so, to what share?

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5. To what relief the plaintiffs are entitled to?

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6. What order or decree?

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HC-KAR

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The plaintiffs, to substantiate their case,

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plaintiff No.1 was examined as PW-1, examined one witness as PW-2 and marked 14 documents as Exs.P-1 to P-14. In rebuttal, defendant No.2 was examined as DW-1 and examined one witness as DW-2 and marked 15 documents as Exs.D-1 to D-15.

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The trial Court, after recording the evidence,

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hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1 and 2 in the affirmative, issue Nos.3 and 4 in the negative and issue Nos.5 and 6 as per the final order. The suit of the plaintiffs was dismissed with costs vide judgment dated 07.10.2017.

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Plaintiffs No.1, 3, 4 and 5, aggrieved by the dismissal of the suit in O.S.No.190/2014, preferred this appeal.

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Heard the learned counsel for the plaintiffs and the learned counsel for the defendants No.2 and 3.

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Learned counsel for the plaintiffs submits that the plaintiffs examined two witnesses and marked 14 documents and the defendants examined two witnesses and marked 15 documents. The trial Court has not assigned any reasons for dismissing the suit of the plaintiffs. He also submits that while answering issue No.1 in the affirmative, the trial Court only extracted the judgments of the Hon’ble Apex Court. He submits that the trial Court has not assigned proper reasons for dismissing the suit of the plaintiffs. He submits that the judgment passed by the trial Court is not in compliance with Order XX Rule 5 of the Code of Civil Procedure. Hence, on these grounds, he prays to allow the appeal setting aside the judgment and decree passed by the trial Court and remitting the matter to the trial Court for fresh consideration.

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Per contra , learned counsel for respondents

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No.2 and 3 submits that the trial Court has considered the entire evidence on record and submits that the judgment

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HC-KAR

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and decree passed by the trial Court is just and proper and

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does not call for any interference. Hence, prays to dismiss the appeal.

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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The points that would arise for consideration

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are:

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1) Whether the judgment and decree passed by the trial Court is perverse, arbitrary and erroneous and without considering the material placed on record?

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2) What order?

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REG. POINT NO.1:

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The plaintiffs filed a suit against the defendants for partition and separate possession. To substantiate their case, Plaintiff No.1 was examined as PW-1. She reiterated the plaint averments in the examination-in-chief

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and marked 14 documents as Exs.P-1 to P-14. The plaintiffs also examined one witness as PW-2. She has

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HC-KAR

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deposed in the same term as of PW-1. Defendant No.2 was examined as DW-1 and also examined one witness as DW-2 and marked 15 documents as Exs.D-1 to D-15.

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From the perusal of the judgment passed by the trial Court, insofar as issue No.2 is concerned, the trial Court by relying upon the judgment passed by the Hon’ble Apex Court in the case of Madhusudan Das vs. Smt. Narayani Bai and others¹ and also relying on the submissions made by the learned counsel for the parties, answered issue NO.2 in the affirmative.

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From the perusal of the findings recorded by

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the trial court on issue Nos.1, 3 and 4, the trial Court referring to the exhibits i.e., ‘P’ series and ‘D’ series, has answered issue No.1 in the affirmative and issue Nos.3 and 4 in the negative. The trial Court should have discussed the entire evidence placed on record and the documents produced by the parties. On the other hand, the trial Court has not considered the entire material on

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1 AIR 1983 SC 114

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record and placed only reliance only on the judgments of the Hon’ble Apex Court and also the judgment passed by the Allahabad High Court. The trial Court has not considered the case on its merits. It is necessary to examine Order XX Rule 5 of the Code of Civil Procedure, for clarify, which reads as follows:

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“5. Court to state its decision on each issue

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In suits in which issues have been framed, the court shall state its finding or decision, with the reasons therefore, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.”

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Admittedly, from the perusal of the judgment passed by the trial Court, the trial Court has not assigned any reasons while recording its finding on issue Nos.1 to 4. The judgment and decree passed by the trial Court is not in compliance with Order XX Rule 5 of the CPC. Hence, on

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this ground alone, the impugned judgment is liable to be set aside. The matter requires reconsideration by the trial Court.

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HC-KAR

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In view of the above discussions, I answer the

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point No.1 in the affirmative.

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REG. POINT NO.2:

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20. Accordingly, I pass 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 07.10.2017 passed in O.S.No.190/2014 by the I Addl. Senior Civil Judge and CJM, Belagavi, is set aside.

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(iii) The suit in O.S.No.190/2014 is restored to its original file.

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(iv) The trial Court is directed to hear the learned counsel for parties and pass judgment in compliance with Order XX Rule 5 of CPC by assigning reasons on all the issues framed and pass an appropriate judgment.

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