Karabasappa S/O Doddaningappa Kuri Vs Smt.Kasturevva W/O Ambanna Karikatti

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1 - NC: 2025:KHC-D:809-DB RFA No. 100197 of 2019

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17^TH DAY OF JANUARY, 2025 PRESENT

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND

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THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100197 OF 2019 (PAR/POS)

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BETWEEN:

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KARABASAPPA S/O DODDANINGAPPA KURI AGE: 67 YEARS, OCC: AGRICULTURE R/O: CHIKKOPPA SK UDACHAMNAGAR TQ: RAMDURG, DIST: BELAGAVI.

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BALAPPA S/O KARABASAPPA KURI AGE: 20 YEARS, OCC: AGRICULTRUE R/O: CHIKKOPPA SK UDACHAMNAGAR TQ: RAMDURG, DIST: BELAGAVI.

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NINGAPPA S/O KARABASAPPA KURI AGE: 19 YEARS, OCC: NIL R/O: CHIKKOPPA SK UDACHAMNAGAR TQ: RAMDURG, DIST: BELAGAVI.

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Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench

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SMT. BASAVVA W/O KARABASAPPA KURI AGE: 45 YEARS, OCC: HOUSEHOLD R/O: CHIKKOPPA SK UDACHAMNAGAR TQ: RAMDURG, DIST: BELAGAVI.

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…APPELLANTS

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(BY SRI. B.V SOMAPUR AND SMT. NANDINI B SOMAPUR, ADVS)

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AND:

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SMT. KASTUREVVA W/O AMBANNA KARIKATTI AGE: 36 YEARS, OCC: HOUSEHOLD WORK R/O: SINDOGI, TQ: SAVADATTI DIST: BELAGAVI.

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SMT. NEELAVVA @ ROOPA W/O SHIVAPPA ULLIGERI AGE: 30 YEARS, OCC: HOUSEHOLD WORK R/O: GOVANAKOPPA, TQ & DIST: DHARWAD.

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SMT. RATNAVVA @ CHAITRA W/O MANJUNATH ULLIGERI AGE: 29 YEARS, OCC: HOUSEHOLD R/O: GOVANAKOPPA, TQ & DIST: DHARWAD.

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SMT. GEETA D/O DYAMANNA KURI AGE: 29 YEARS, OCC: HOUSEHOLD R/O: CHIKKOPPA, NOW AT C/O. KALLAPPA DIVATAGI OF NAVALGUND TQ: NAVALGUND, DIST: DHARWAD.

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…RESPONDENTS

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(BY SMT. SHAILA BELLIKATTI, ADV FOR R1 TO R4)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.01.2019 PASSED IN O.S.NO.20/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, RAMDURG, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,

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JUDGMENT WAD DELIVERED THEREIN AS UNDER :

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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA

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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 defendants/appellants challenging the judgment and preliminary decree dated 29.01.2019 passed in O.S.No.20/2014 by the learned Senior Civil Judge, Ramdurg.

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For convenience, the parties are referred to, as per their ranking before the trial court. The appellants were defendants No.1 to 4 and respondents No.1 to 4 were the plaintiffs, and the other respondents were the other defendants.

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Brief facts leading rise to the filing of this regular first appeal are as under:

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The plaintiffs filed the suit against the defendants for the relief of partition and separate possession of the suit schedule properties. It is the case of the plaintiffs that, defendant No.1 was the original propositus. He had a wife, by the name, Gangawwa, who passed away 20 years back.

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The Plaintiffs No.1 to 3 are the daughters of defendant No.1, and plaintiff No.4 is the daughter-in-law of defendant No.1. It is the case of the plaintiffs that, the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants. The plaintiffs and the defendants are the members of the Hindu undivided joint family and no partition is effected between the plaintiffs and defendant No.1. It is stated that, the suit item No.1 property is purchased by defendant No.1 out of the income from the ancestral property. Therefore, the said property is also the joint family property. Defendant No.1 is addicted to bad habits and tried to dispose of the suit schedule properties. Defendant No.1 has executed a registered gift deed dated 07.06.2014 in favour of defendant Nos.2 and 3. It is contended that, defendant No.1 had no right to execute the gift deed in favour of defendant Nos.2 and 3. The gift deed executed by defendant No.1 in favour of defendant Nos.2 and 3 is not binding on the plaintiffs’ share. It is contended that, the plaintiffs demanded for a partition and

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separate possession. Defendant No.1 refused to effect partition. Hence, a cause of action arose for the plaintiffs

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to file the suit for the relief of partition and separate possession. Accordingly, pray to decree the suit.

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Defendant No.1 filed a written statement, and defendant Nos.2 to 4 filed a memo, adopting the written statement filed by defendant No.1. Defendant Nos.5 to 8 remained unrepresented, and they were placed ex-parte.

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Defendant No.1 filed a written statement admitting the relationship, contending that, the suit item Nos.2 to 6 are the joint family properties of himself and his brother. Suit item No.1 bearing Sy.No.124/1, measuring 10 acres 7 guntas was purchased by defendant No.1, out of his own earnings. The said property is the self-acquired property of defendant No.1. In item Nos.2 to 6, he has 1/3^rd share. Plaintiff Nos.1 to 3 are the daughters and plaintiff No.4 is the daughter-in-law of defendant No.1. After the death of his first wife, defendant No.1 got married to defendant No.4, and defendant Nos.2

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and 3 were born to defendant No.4 in their wedlock. He performed the marriage of plaintiff Nos.2 & 3, and at the time of marriage, he gave money and gold to them. It is contended that, he gifted land bearing Sy.No.124/1 in favour of defendant Nos.2 and 3 by way of gift. It is contended that, the plaintiffs have no right or share in the suit item No.1, i.e., Sy.No.124/1. Hence, prays to dismiss the suit.

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Based on the pleadings of the parties, the trial

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court has framed the following issues.

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1) Whether the plaintiffs prove that, plaintiffs No.1 to 3 and deceased husband of plaintiff No.4 are the children of defendant No.1 and deceased Gangawwa, the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendant No.1 and they are in joint possession and enjoyment of the suit schedule properties?

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2) Whether the defendant No.1 proves that, R.sy.No.124/1 measuring 10 acres 7 guntas is his self-acquired property of and he has

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gifted the same in favour of the defendants No.3 and 3, as per the registered gift dated 07.06.2014?

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3) Whether the plaintiffs are entitled for 1/15^th share in the suit schedule properties by metes and bounds?

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4) Whether the plaintiffs are entitled for the relief’s so sought for?

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5) What order or decree?

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The plaintiffs to substantiate their case, plaintiff

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No.1 was examined as P.W.1, examined two witnesses as P.Ws.2 and 3, and marked 32 documents, as Exs.P1 to P32. The defendants neither led any oral evidence nor produced any documents or cross-examined P.Ws.1 to 3. The trial court, after recording the evidence, hearing both the sides, and on assessment of oral and the documentary evidence, answered issue No.1 in the affirmative, issue No.2 in the negative, issue No.3 partly in the affirmative, issue No.4 partly in the negative and issue No.5, as per the final order. The trial court partly decreed the suit of

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the plaintiffs vide judgment dated 29.01.2019. It is declared that, the plaintiffs are entitled to 1/8^th share each, in the suit schedule properties by metes and bounds. The defendants, aggrieved by the judgment and the preliminary decree dated 29.01.2019 passed in O.S.No.20/2014, filed this regular first appeal.

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Heard the learned counsel Smt.Nandini for the defendants and the learned counsel Smt.Shaila Bellikatti for the plaintiffs.

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The learned counsel for the defendants submits that, Sy.No.124/1 is a self-acquired property of defendant No.1, and he had purchased the said property out of his own earnings. She submits that, defendant No.1 had executed the gift deed in favour of defendant Nos.2 and 3 in respect of the land bearing Sy.No.124/1. She submits that, the plaintiffs have no right to claim a share in the said property, as it is the self-acquired property of defendant No.1. She further submits that, the trial court has not granted the sufficient opportunity to cross-

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examine P.Ws.1 to 3, and not permitted to lead rebuttal evidence. Hence, she submits that, one opportunity is to be granted to the defendants, to cross-examine P.Ws.1 to 3, and lead rebuttal evidence. Hence, on these grounds, she prays to allow the appeal.

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Per contra, the learned counsel for the plaintiffs submits that, the land bearing Sy.No.124/1 was acquired out of the income derived from item Nos.2 to 6 of the suit schedule properties. The said land is the joint family property of the plaintiffs and the defendants. She submits that, the trial court has granted sufficient opportunity to the defendants to cross-examine P.Ws.1 to 3. Despite granting sufficient opportunities, the defendants did not cross-examine P.Ws.1 to 3. She submits that, the trial court granted the opportunity to lead the defendants’ evidence, but, despite granting sufficient opportunity, the defendants have not adduced the evidence. She submits that, defendant No.1 filed a written statement contending that, he is entitled to a share in item Nos.2 to 6 of the suit

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schedule properties. She submits that, there is no dispute regarding the relationship between the plaintiffs and the defendants, and the nature of the suit schedule properties. She submits that, the trial Court was justified in decreeing the suit. Hence, on these grounds, she prays to dismiss the appeal.

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Perused the records, and considered the submissions of the learned counsel for the parties. The points that would arise for our consideration are;

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1. Whether the defendants prove that, the trial court has not provided sufficient opportunity for the defendants to cross-examine P.Ws.1 to 3 and directly posted the matter for arguments on 19.12.2018?

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1. What order or decree?

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Point No.1.

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It is the case of the plaintiffs that, the suit schedule properties are the ancestral and joint family

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properties of the plaintiffs and the defendants. They are the members of a Hindu undivided joint family and no partition is effected. The plaintiffs requested the defendants to effect the partition, but, the defendants refused to do so. To prove their case, on 28.08.2018, plaintiff No.1 was examined as P.W.1 and marked 15 documents as Exs.P1 to P15. Again, on 18.09.2018, P.W.1 examination-in-chief marked documents as per Exs.P16 to 30, and the matter was adjourned to 25.09.2018 for cross-examination of P.W.1. Further, the matter was adjourned to 01.10.2018 for cross-examination of P.W.1. On 01.10.2018, P.W.1 was absent, and it was adjourned to 30.10.2018.

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From the perusal of the order sheet dated 30.10.2018, it does not disclose as to whether P.W.1 was absent on that day. But, the trial court has taken the cross-examination of P.W.1 as nil. On 19.11.2018, the plaintiffs filed a memo along with a list of witnesses, and filed the chief affidavit of P.Ws.2 and 3 was filed. On the

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same day, the trial court has taken the cross-examination as nil and closed the plaintiffs’ side, evidence, and posted the matter for the defendants’ evidence on 27.11.2018. On 27.11.2018, the plaintiffs filed an application in I.A.No.8 seeking for amendment to the plaint, and the matter was posted for objections. However, on the same day, the objections were taken as not filed and allowed, the application I.A.No.8 and permitted the plaintiffs to amend the plaint, and furnish the amended plaint. On 03.12.2018, the matter was listed for filing an additional written statement, and the matter was adjourned to 18.12.2018. On 18.12.2018, the additional written statement of the defendants was taken as not filed and the defendants evidence was taken as nil, and posted the matter for arguments.

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From the perusal of the entire order sheet, it discloses that, the trial court has not provided sufficient opportunity to the defendants to cross-examine P.Ws.1 to 3. The plaintiffs filed an application in I.A.No.8 on

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27.11.2018. The trial Court ought to have provided an opportunity to the defendants to file the objection to I.A.No.8. However, the trial Court has taken the objections as nil and disposed of, the said application on the same day. Further, the plaintiffs also filed an application in I.A.No.9 on 02.01.2019. On the same day, the trial Court taken the objections as not filed and allowed I.A.No.9 filed by the plaintiffs. From the perusal of the order sheet dated 20.12.2018, it becomes clear that, the trial court has framed the issues and no opportunity was provided to lead evidence on the issues framed on 20.12.2018, and proceeded to hear the arguments of the learned counsel for the parties and posted the matter for judgment.

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The trial court has committed an error in not providing sufficient opportunity to the defendants to file their objections to I.A.Nos.8 and 9, to cross-examine P.Ws.1 to 3, and to lead rebuttal evidence of the defendants. Thus, the impugned judgment passed by the trial Court is in violation of the principles of natural justice.

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Hence, on this ground alone, the impugned judgment is liable to be set aside. In view of the above discussion, we

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answer point No.1 in the affirmative.

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Point No.2.

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In view of the above discussion, we proceed to

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pass the following;

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ORDER

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i) The Regular First Appeal is allowed.

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ii) The judgment and preliminary decree dated 29.01.2019 passed in O.S.No.20/2014 by the learned Senior Civil Judge, Ramdurg is hereby set aside.

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iii) The suit is restored to file.

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iv) The orders passed by the trial Court on I.A.Nos.8 and 9 are set aside.

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v) The trial Court is directed to permit the defendants to file their objections to I.A.Nos.8 and 9 and thereafter, pass appropriate orders, in accordance with law.

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vi) Further, the trial Court is directed to provide an opportunity to the defendants to cross-examine P.Ws.1 to 3 and permit the defendants to lead rebuttal evidence.

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