Mahadev Babu Dabb@ Dabbanavar Vs Siddappa S/O. Mahantesh Dabb @ Dabbanavar

THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 21.04.2016 PASSED IN O.S. NO.31/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, GOKAK.

¶27

THIS APPEAL, COMING ON FOR FURTHER DICTATION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER:

¶28

ORAL JUDGMENT

¶29

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

¶30

This appeal is filed by the appellant/defendant No.2 challenging the judgment and decree dated 21.04.2016 passed in O.S.No.31/2012 on the file of Principal Senior Civil Judge, Gokak¹ , thereby, the suit filed for partition is decreed.

¶31

For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.

¶32

1 (hereinafter referred to as ‘the Trial Court’ for short)

¶33

3 -

¶34

NC: 2025:KHC-D:8223 RFA No. 100054 of 2017

¶35

HC-KAR

¶36

It is the case of plaintiffs that one Siddappa is the

¶37

original propositus and he has three children, namely Babu, Shivaningappa and Shivarai. The plaintiffs have produced genealogy, which is as follows:

¶38

¨Á§Ä (ªÀÄÈvÀ) ²ªÀ¤AUÀ¥Àà (ªÀÄÈvÀ) ²ªÀgÁ¬Ä (¥ÀæwªÁ¢ 1) = UÀAUÀªÁé (ªÀÄÈvÀ) = ZÀÄAqÀªÁé (ªÀÄÈvÀ) ªÀÄºÁzÉÃªÀ ªÀÄºÁAvÉÃ±À (ªÀÄÈvÀ) (¥ÀæwªÁ¢ £ÀA.2)

¶39

ªÀÄ®èªÁé (ªÉÆzÀ®£É ºÉAqÀw- ªÀÄÈvÀ) ¥ÁgÀªÁé (JgÀqÀ£É ºÉAqÀw) (ªÁ¢ £ÀA.4)

¶40

±ÉÆÃ¨sÁ (ªÀÄÈvÀ) ¹zÀÝ¥Áà (ªÁ¢ £ÀA.1) §¸ÀªÁé (ªÁ¢ £ÀA.3) ²ªÀ°AUÀ¥Áà (ªÁ¢ £ÀA.2) 4. The plaintiffs have contended that the suit properties are ancestral properties and thus all the three sons of original propositus had an equal 1/3^rd share. There was no partition in the suit properties in the family. The plaintiffs are

¶41

4 -

¶42

NC: 2025:KHC-D:8223 RFA No. 100054 of 2017

¶43

HC-KAR

¶44

children of the branch of Shivaningappa. Thus, the plaintiffs and defendant No.3 are together entitled to 1/3^rd share in the suit properties. Therefore, filed suit for partition.

¶45

Defendant No.1 has filed written statement

¶46

admitting the case of the plaintiffs.

¶47

Defendant No.2 filed written statement and denied the relationship of plaintiffs and defendant No.3 with Mahantesh. According to defendant No.2, Mahantesh, son of Shivaningappa, died unmarried. Therefore, the plaintiffs and defendant No.3 are not legal heirs of said Mahantesh and are not at all concerned to the family of propositus-Siddappa.

¶48

Further contended that defendant No.1 had sold his 1/3^rd share in Sy.No.114/14 to one Goudappa Shrishailappa Kotagi, who is also necessary party. Further, defendant No.2 is also having one sister by name Kallavva, but she is not made a party. Therefore, the suit filed is bad by non-joinder of necessary parties. Hence, defendant No.2 prays to dismiss the suit.

¶49

5 - NC: 2025:KHC-D:8223 RFA No. 100054 of 2017

¶50

HC-KAR

¶51

Defendant No.3 has filed written statement and

¶52

admitted the case of the plaintiffs.

¶53

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

¶54

i. Whether plaintiffs prove that they are wife and children of Mahantesh S/o Shivaningappa?

¶55

ii. Whether suit is bad for non-joinder of necessary parties as contended in para 17 of written statement of defendant No.2?

¶56

iii. Whether plaintiffs are entitled for shares in suit properties as claimed?

¶57

iv. What decree or order?

¶58

In order to prove the case, plaintiff No.1 is examined as PW-1 and one more witness is examined as PW-2

¶59

and documentary evidence marked as Exs.P-1 to P-22. Defendant No.2 is examined as DW-1 and defendant No.1 is examined as DW-2 and documentary evidence marked as Exs.D-1 to D-13.

¶60

6 -

¶61

NC: 2025:KHC-D:8223 RFA No. 100054 of 2017

¶62

HC-KAR

¶63

The Trial Court has decreed the suit by granting the plaintiffs 1/3^rd share together in the suit properties. So far as Sy.No.114/14 is concerned, the plaintiffs are entitled to ½ share in the extent of 24 guntas and accordingly, the sale made by defendant No.1 in the said survey number is saved. The Trial Court assigned reasons that the suit properties are ancestral properties and there was no division. The plaintiffs are representing the branch of Shivaningappa. Mahantesh is the son of Shivaningappa, who has two wives by name Mallavva and Paravva. When defendant No.2 denied that the plaintiffs and defendant No.3 are legal heirs, the Trial Court based on the documentary evidence Ex.P-10-School Certificate, Exs.P-11 and P12-ration cards, Ex.P13- School Leaving Certificate, Ex.P14- Voters ID card, Ex.P17- Birth Certificate and Ex.P19- marriage invitation card, held that plaintiff Nos.1 to 3 are wife and children and defendant No.3 is the daughter of Mahantesh. Therefore, the relationship is proved. Accordingly, granted the decree.

¶64

Regarding non joinder of necessary parties, though Kallavva, who is sister of defendant No.2 is not made as party,

¶65

7 -

¶66

NC: 2025:KHC-D:8223 RFA No. 100054 of 2017

¶67

HC-KAR

¶68

defendant No.2 is representing branch of Babu, who is having 1/3^rd share. Therefore, Kallavvva can claim her share in the share to be given to defendant No.2. Thus, it is held that said Kallavva is not necessary party in the present suit.

¶69

Further, the purchaser of the land bearing Sy.No.114/14 is not made as party in the present suit, but defendant No.1 had sold 1/3^rd share; therefore, sold out 1/3^rd share is separate property and accordingly, defendant No.1 has not been given share in the land bearing Sy.No.114/14. Therefore, the purchaser is also not a necessary party. By observing all these reasonings, the Trial Court decreed the suit as above stated.

¶70

Being aggrieved by the judgment and decree passed by the Trial Court, defendant No.2/appellant has preferred the instant appeal by raising various grounds in the memorandum of appeal and in consonance with the grounds raised therein, learned counsel for the appellant/defendant No.2 submitted that Mahantesh is not concerned with the family of original propositus. Further submitted that Mahantesh

¶71

8 -

¶72

NC: 2025:KHC-D:8223 RFA No. 100054 of 2017

¶73

HC-KAR

¶74

died unmarried, without having a wife and children; therefore, the plaintiffs and defendant No.3 are falsely claiming that they are legal heirs of the deceased Mahantesh. Further argued with reference to the cross-examination of PW-1 and stated that PW-1 admitted that Mahantesh died unmarried. Therefore, based on this admission, learned counsel for the appellant/defendant No.2 submitted that when Mahantesh died unmarried, there is no question of plaintiffs and defendant No.3 being legal heirs of Mahantesh. Hence, the decree of the suit filed for partition is erroneous. Therefore, prays to allow the appeal.

¶75

On the other hand, learned counsel for the respondents/plaintiffs and defendant No.3 submitted that the plaintiffs have produced oral and documentary evidence to prove that Mahantesh has married two wives and plaintiff No.1 is the son through 1^st wife and plaintiff No.3 is the 2^nd wife. Further, defendant No.3 and plaintiff No.2 are the children through 2^nd wife. The documentary evidence proved the aforesaid aspects, therefore, Mahantesh died having children. This is correctly appreciated by the trial Court,

¶76

9 -

¶77

NC: 2025:KHC-D:8223 RFA No. 100054 of 2017

¶78

HC-KAR

¶79

which needs no interference. Accordingly, the trial Court granted decree for partition and therefore, prays for dismissal of the appeal.

¶80

Upon hearing the arguments on both sides, the following points would arise for consideration in this appeal:

¶81

a) Whether, in the facts and circumstances involved in the present case, defendant No.2 proves the fact that Mahantesh died unmarried and issueless, thus, the plaintiffs No.1 to 3 are not concerned to the family of the original propositus Siddappa?

¶82

b) Whether the impugned judgment and decree of the trial Court requires interference?

¶83

In the present case, the fact that the deceased Siddappa is the original propositus and he has three children namely Babu, Shivaningappa and Shivarayi is not in dispute. It is also not in dispute that the suit schedule properties are ancestral properties. Further, there is no evidence to prove that there was partition among Babu, Shivaningappa and Shivarayi either during lifetime of original propositus Siddappa or after his death. Defendant No.2 is disputing the fact that

¶84

10 - NC: 2025:KHC-D:8223 RFA No. 100054 of 2017

¶85

HC-KAR

¶86

Mahantesh had wives and children. As per defence of defendant No.2, Mahantesh died unmarried, therefore, the plaintiffs and defendant No.3 are not legal heirs of Mahantesh and they are not concerned to the family of original propositus Siddappa. When the plaintiffs have taken a plea that plaintiff No.1 is the son of Mahantesh through 1^st wife Mallavva, plaintiff No.2 and defendant No.3 are the children of deceased Mahantesh through 2^nd wife, the documentary evidence are to appreciated. During the course of cross-examination, PW1 admitted that the deceased Mahantesh died unmarried. Learned counsel for the appellant/defendant No.2 has mainly stressed upon this admission. Therefore, in the context of other evidence both oral and documentary, whether his (PW1) admission amounts to stray sentence or not, is to be examined.

¶87

In Ex.P1 to P9 (ROR), name of plaintiff No.3 and defendant No.3 is appearing as wife and daughter of Mahantesh respectively. Further, Ex.P10 is the school certificate of plaintiff No.1-Siddappa Mahantesh Dabb, which proved that the plaintiff No.1 is the son of Mahantesh through

¶88

11 - NC: 2025:KHC-D:8223 RFA No. 100054 of 2017

¶89

HC-KAR

¶90

1^st wife Mallavva. Ex.P11 is the ration card, in which it is stated that plaintiff No.1 is the son of deceased Mahantesh. Ex.P12 is the ration card, proving that plaintiff No.2 is the son of Manatesh through 2^nd wife. Ex.P13 is the School Leaving Certificate of plaintiff No.2-Shivaningappa, showing as son of Mahantesh, who is son through 2^nd wife. Ex.P14 is the voters identity card issued by Election Commission of India, which shows that the plaintiff No.3-Parawwa is the wife of deceased Mahantesh. Ex.P15 is the Record of Rights, which shows the name of plaintiffs No.1 and 2 as sons of deceased Mahantesh. Ex.P16 is the Birth Certificate of plaintiff No.1, which shows the father of plaintiff No.1 as Mahantesh Dabbanavar. Ex.P17 is the Birth Certificate of plaintiff No.2, which shows the father of plaintiff No.2 as Mahantesh Dabbanavar by mentioning the mother’s name as Parwati Dabbanavar, who is 2^nd wife of deceased Mahantesh.

¶91

Therefore, all these documentary evidence coupled with oral evidence of PW1 would prove the fact that plaintiff No.3 is the 2^nd wife of deceased Mahantesh and plaintiff No.1 is the son of deceased Mahantesh through 1^st wife Mallavva and

¶92

12 - NC: 2025:KHC-D:8223 RFA No. 100054 of 2017

¶93

HC-KAR

¶94

plaintiff No.2 and defendant No.3 are the children of deceased Mahantesh through 2^nd wife. Therefore, all these documentary evidence prove the fact that the plaintiffs and defendant No.3 are the wife and children of deceased Mahantesh. Therefore, upon appreciating the oral and documentary evidence as above stated, it is proved that whatever admission given by PW1 that Mahantesh died unmarried and issueless, has become stray sentence.

¶95

Therefore, whenever evidence is appreciated, the exercise of complete evidence must be considering the whole evidence, but not pick and choose of a single sentence. Therefore, the trial Court in this regard has correctly appreciated the evidence on record.

¶96

Further, regarding Kallavva, who is sister of defendant No.2 being daughter of Babu, is not made as a party to the suit is concerned, as discussed above, admittedly, there was no partition from the time of propositus Siddappa and his children namely Babu, Shivaningappa and Shivarayi. The defendant No.2 and Kallavva are representing the branch

¶97

13 - NC: 2025:KHC-D:8223 RFA No. 100054 of 2017

¶98

HC-KAR

¶99

through Babu. When there was no partition in the family, therefore, Babu will get 1/3^rd share, and defendant No.2 and Kallavva will inherit the 1/3^rd share of Babu and if Kallavva may make claim, that could be done with the defendant No.2. Therefore, making Kallavva as party to the suit does not arise and thus, suit is not barred for non-joinder of necessary parties. 22. Further, so far as Survey No.114/14 is concerned, divided into 36 guntas, the son of propositus Siddappa namely Shivarayi, who is defendant No.1 had sold his 1/3^rd share i.e., 12 guntas of land to 1/3^rd share. There is remaining 24 guntas available for partition, both to defendant No.2 and plaintiffs and defendant No.3 together. Therefore, the purchaser from Shivarayi is not necessary party in the present suit. Since, Shivarayi has sold only his 1/3^rd share to the vendee. Therefore, this will not affect the suit filed by the plaintiffs.

¶100

Therefore, upon considering the case and appreciating the evidence on record on all its preponderance of probability, the trial Court is correct in granting decree.

¶101

14 -

¶102

NC: 2025:KHC-D:8223 RFA No. 100054 of 2017

¶103

HC-KAR

¶104

Plaintiffs are entitled to 1/3^rd share in the suit properties. Also the trial Court is correct insofar as Survey No.114/14 is concerned, the plaintiffs and defendant No.2 are entitled to half share each in the extent of 24 guntas. Accordingly, I answer point No.(i) and (ii) in the ‘negative’. Therefore, the judgment and decree passed by the trial Court is to be confirmed. The appeal is liable to be dismissed.

¶105