Gundurao @ Bindurao Vs Sushilendra S/O Pandurangrao Deshpande

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1 - NC: 2025:KHC-D:1689-DB RFA No. 100223 of 2019 C/W RFA No. 100214 of 2019

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 28^TH DAY OF JANUARY, 2025

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PRESENT

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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AND

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THE HON'BLE MR. JUSTICE UMESH M ADIGA

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REGULAR FIRST APPEAL NO. 100223 OF 2019 (PAR)

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C/W

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REGULAR FIRST APPEAL NO. 100214 OF 2019

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IN RFA NO.100223 OF 2019 BETWEEN:

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SHRI.SUSHILENDRA S/O PANDURANGRAO DESHPANDE AGE:69 YEARS, OCC:AGRICULTURE, R/O NEAR CHAWADI, KAMATAGI, TQ. & DIST:BAGALKOTE.

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

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SMT. SUNANDA W/O SUSHILENDRA DESHPANDE AGE:64 YEARS, OCC:AGRICULTURE, R/O NEAR CHAWADI, KAMATAGI, TQ & DIST:BAGALKOTE.

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SHRI SUDEEP S/O SUSHILENDRA DESHPANDE AGE: 40 YEARS, OCC: AGRICULTURE and PRIVATE SERVICE, R/O NEAR CHAWADI, KAMATAGI, TQ & DIST:BAGALKOTE

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…APPELLANTS

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(BY SRI H.R.DESHPANDE, ADVOCATE)

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AND:

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SHRI.GUNDURAO @ BINDURAO S/O SHRINIVASRAO DESHPANDE AGE: 85 YEARS, R/O H.NO.286, WARD NO.9, NEAR VENKATESH TEMPLE, VENKATPETH, BAGALKOTE-587120.

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SHRI GOVINDARAO S/O SUSHILENDRA DESHPANDE AGE:79 YEARS, OCC:PENSIONER, NOW AT R/O NEAR CHAWADI, KAMATAGI, TQ 7 DIST:BAGALKOTE-587120

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…RESPONDENTS

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(BY SRI. SANJAY CHANAL & S.S.PATIL, ADVOCATE FOR C/R-1, SRI. J.S.SHETTY, ADVOVATE FOR R-2)

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THIS RFA IS FILED UNDER SEC. 96 OF CPC., PRAYING TO ALLOW THIS APPEAL BY SETTING ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 28.02.2019, PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE, BAGALKOT IN O.S.NO.77/2015 IN SO FAR AS REGARDS THE PROPERTIES AT SL.NO.1 AND 2 OF THE ‘B’ SCHEDULE OF THE PLAINT AND TO DISMISS THE SAID SUIT WITH RESPECT TO BE AFORESAID PROPERTIES WITH COSTS THROUGHOUT.

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IN RFA NO.100214 OF 2019

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BETWEEN:

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GUNDURAO @ BINDURAO S/O SHRINIVASRAO DESHPANDE, AGE: 85 YEARS, OCC: PENSIONER, R/O: H.NO:286, WARD NO:9, NEAR VENKATESH TEMPLE, VENKATPETH, BAGALKOT, TQ. & DIST: BAGALKOT-587101.

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…APPELLANT (BY SRI. SANJAY CHANAL AND S.S. PATIL, ADVOCATES)

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AND:

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SUSHILENDRA S/O PANDURANGRAO DESHPANDE, AGE: 69 YEARS, OCC: AGRICULTURE,

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SUNANDA W/O SUHILENDRA DESHPANDE, AGE: 64 YEARS, OCC: HOUSEWIFE,

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SUDEEP S/O SUHILENDRA DESHPANDE, AGE: 40 YEARS, OCC: AGRICULTURE AND PRIVATE SERVICE, ALL ARE R/O: NEAR CHAWADI, KAMATAGI, TQ. AND DIST: BAGALKOT-587101.

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GOVINDARAO S/O SHRINIVASRAO DESHPANDE AGE: 79 YEARS, OCC: PENSIONER, R/O: WARD NO:9, NEAR VENKATESH TEMPLE, VENKAPETH, BAGALKOT, TQ & DIST: BAGALKOT-587101.

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…RESPONDENTS

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(BY SRI. H.R.DESHPANDE, ADVOCATE FOR R1 TO R3, VIDE ORDER DATED 23.03.2023, SRI. J.S.SHETTY, ADVOCATE FOR R-4)

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THIS RFA IS FILED UNDER SEC. 96 R/W ORDER 41 RULE 1 OF CPC., PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE IN RESPECT OF SUIT SCHEDULE PROPERTY IN R.S.NO.1178/2 IN O.S.NO.77/2015 DATED 28.02.2019 PASSED BY PRINCIPAL SENIOR CIVIL JUDGE, BAGALKOT IN THE INTERET OF JUSTICE AND EQUITY.

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THESE APPEALS, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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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 OJUDGMENT

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

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These Regular First Appeals arise out of the judgment and preliminary decree dated 28.02.2019 passed in O.S.No.77/2015 by the learned Principal Senior Civil Judge, Bagalkot.

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For convenience, the parties are referred to based on their ranking before the trial court.

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Defendant Nos.1 to 3 filed RFA No.100223/2019 and the plaintiff filed RFA

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No.100214/2019. These appeals are filed, challenging the judgment and decree passed by the trial court.

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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 the suit for the relief of partition and separate possession. It is the case of the plaintiff that one Raghavendra Deshpande was the original propositus. The original propositus, Raghavendra Deshpande, and his wife died long back, leaving behind their three sons,

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Narayanrao, Shrinivasrao and Pandurangrao. All the sons of Raghavendra Deshpande are no more. Narayanrao died leaving behind him his two sons, i.e., the plaintiff and defendant No.4. The third son, Pandurangrao died leaving behind him his son, i.e., defendant No.1. The plaintiff and the defendants have succeeded to the suit schedule properties and the same are the ancestral and joint family properties of the plaintiff and the defendants. The propositus gave varadi to mutate the name of Narayanrao Deshpande regarding land bearing Sy.Nos.65 and 66 of Ingalagi village, and his name was mutated on 18.06.1948, as he was the joint family manager. Subsequently, mutations were effected illegally in the name of the father of defendant No.1, behind the back of the plaintiff. Subsequently, defendant No.1, illegally mutated the said properties in the name of defendant Nos.2 and 3. The land bearing Sy.No.1178/2, measuring 7 acres 33 guntas situated at Shirur village of Bagalkot District, was purchased by the father of defendant No.1 out of the joint family funds, and it is standing in the name

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of defendant No.1. Hence, the plaintiff constrained to file the suit.

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Defendant Nos.1 and 4 filed their respective written statement. Defendant Nos.2 and 3 adopted the written statement filed by defendant No.1. Defendant No.1 admits the nature of the suit schedule properties. It is contended that, during the lifetime of the propositus, there was a partition in 1955 among his sons and descendants of deceased sons. In the said partition, the house property bearing VPC No.286 and landed properties, i.e., bearing Sy.Nos.44/1 and 58/1 situated at Basarikatti village of Hunagund Taluk was allotted to Narayanrao; and land bearing Sy.No.52/2 situated at Bhairmatti village of Bagalkot Taluk was allotted to the plaintiff; and another land bearing Sy.No.199/1 situated at Muranal village was allotted to the share of defendant No.4; and the house property located at Venkatpeth was jointly allotted the plaintiff and defendant No.4. It is further contended that, the land bearing Sy.No.58/1+2+3+4 located at

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Yaranaikanal village of Hunagund Taluk and a house located at Bagalkot was given to Ramabai, i.e., mother of the plaintiff for her maintenance. It is contended that, the land bearing Sy.Nos.65, 66 and 67/1 situated at Ingalagi village and R.S.No.1178/2 situated at Shirur village and another land bearing R.S.No.41/1+2 situated at Yaranaiknal village was allotted to the share of Pandurangrao. It is contended that, some house properties and R.S.No.1178/2 of Shirur village were given to Venkubai w/o Raghavendrarao for her maintenance, during her lifetime, and land bearing Sy.No.1178/2 was purchased by Pandurangrao by his own funds. Hence, it was allotted to the share of Pandurangrao. It is contended that, as per the partition effected by Raghavendra, the memorandum was also prepared on 12.08.1955. The said partition was acted upon and the plaintiff has not included the properties allotted to his share. Hence, the suit is not maintainable in the absence of non-joinder of necessary properties. Therefore, he prays to dismiss the suit.

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6. Defendant No.4 filed a written statement

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admitting the averments made in the plaint and sought for the relief of partition and separate possession and allot his share.

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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 plaintiff proves that, suit schedule ‘B’ properties are ancestral joint family properties and he is entitled for 1/4^th share in those properties?

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1. Whether the plaintiff proves that, revenue records of the properties bearing R.S.No.65 and R.S.No.66 of Ingalagi village are illegally mutated into the name of late Pandurangrao Deshpande i.e., father of defendant No.1 in M.E.No.389 dated 20.11.1959 behind his back and subsequently mutated into the name of defendant No.2 who is wife of the defendant No.1 and defendant No.3 who is son of defendant No.1?

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1. Whether the plaintiff proves that, property bearing R.S.No.1178/2 of Shirur village has

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been purchased out of the joint family funds and income of the joint family properties?

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1. Whether the plaintiff proves that, revenue records of the property bearing R.S.No.1178/2 of Shirur village has now been illegally mutated into the name of the defendant No.1?

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1. Whether the defendants prove that, properties Raghavendrarao effected the partition among his sons and descendants of the deceased son during his lifetime in the year 1955?

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1. Whether the defendants proves that, among four sons of Raghavendrarao one son Keshavrao went in adoption and Hanamanthrao who is son Shrinivasrao, son of Raghavendrarao went in adoption?

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1. Whether the defendants proves that, the suit schedule ‘B’ properties along with the another property was allotted to the share of the father of defendant No.1 in the partition dated 12.8.1955?

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1. Whether the plaintiff is entitled for the relief sought for?

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1. What order or decree?

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To prove his case, the plaintiff himself

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examined as P.W.1 and marked 5 documents as Exs.P1 to P5. Defendant No.1 was examined as D.W.1 and marked 11 documents as Exs.D1 to D11. The trial court, after recording the evidence, hearing on both sides and on assessment of the oral and documentary evidence, answered issue Nos.1 and 8 partly in the affirmative, issue No.2 in the affirmative and issue Nos.3 to 7 in the negative and issue No.9 as per the final order. The suit of the plaintiff was partly decreed. It is declared that the plaintiff is entitled to partition and separate possession of his 1/4^th share in the suit schedule Sl.Nos.1 and 2 properties by metes and bounds. The suit of the plaintiff regarding suit schedule Sl.No.3 property was dismissed. The relief of partition claimed by defendant No.4 was also dismissed. The plaintiff, aggrieved by the dismissal of the suit regarding suit schedule Sl.No.3 property, preferred the appeal in RFA No.100214/2019 and defendant Nos.1 to 3, aggrieved by the judgment and decree regarding suit

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schedule Sl.Nos.1 and 2 properties, preferred the appeal in RFA No.100223/2019.

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Heard the learned counsel for defendant Nos.1 to 3 and the learned counsel for the plaintiff.

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Learned counsel for the defendants submits that, during the lifetime of the original propositus, there was a partition effected between the original propositus, his wife, and his sons. The properties were allotted to the respective shares of the parties, and they are in possession of their respective properties. The partition was acted upon and the memorandum of the petition was reduced into writing. He submits that the said aspect was not considered by the trial court and committed an error in decreeing the suit, and granting share to the plaintiff in suit schedule Sl.Nos.1 and 2 of the properties. He submits that the trial court has not properly appreciated the documents produced by the defendants. Hence, the judgment and decree passed by the trial court insofar as suit schedule Sl.Nos.1 and 2 properties is erroneous and

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arbitrary. Hence, on these grounds, he prays to allow the appeal filed by the defendants and dismiss the appeal filed by the plaintiff.

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Per contra, learned counsel for the plaintiff

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submits that the trial court committed an error in dismissing the suit insofar as suit schedule Sl.No.3 of the property is concerned. He submits that suit schedule Sl.No.3 property is the ancestral and the joint family property of the plaintiff and the defendants. Hence, the plaintiff is entitled to a share in the suit schedule Sl.No.3 property. Hence, he prays to allow the appeal filed by him and dismiss the appeal filed by the defendants.

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Heard, 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 plaintiff proves that the suit schedule properties are the joint family properties of the plaintiff and the defendants?

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1. Whether the defendants prove that the original propositus Raghavendra Deshpande effected partition among his sons and descendents of the deceased dons, during his lifetime in 1955?

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1. Whether the plaintiff and defendant Nos.1 to 3 prove that the judgment and decree passed by the trial court is perverse and arbitrary?

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1. What order or decree?

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Point Nos.1 and 2.

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Point Nos.1 and 2 are interlinked, and they are taken up together for common discussion to avoid repetition of facts.

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To substantiate his case, the plaintiff examined

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himself as P.W.1 and reiterated the plaint averments in his examination-in-chief. To prove that the suit schedule properties are the joint family properties, he produced documents, where Ex.P1 is the RTC extract regarding Sy.No.65 standing in the name of defendant No.2. Ex.P2 is another RTC extract regarding Sy.No.66 standing in the name of defendant No.3. Ex.P3 is the RTC extract

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regarding Sy.No.1178/2 standing in the name of defendant No.1. Exs.P4 and P5 are the certified copies of M.E.Nos.181 and 389. During the cross-examination, it was suggested to P.W.1 that, there was a prior partition in 1955. The said suggestion was denied by P.W.1. It is also suggested to P.W.1 that, based on the partition effected on 12.08.1955, the names of the respective parties were entered in the revenue records. The said suggestion was also denied by P.W.1.

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Defendant No.1 was examined as D.W.1. He deposed that, during the lifetime of Raghavendrarao, there was a partition between his wife and sons, and the partition was reduced into writing. Based on the said partition, the names of the respective parties were entered into, in the revenue records. To prove the prior partition, the defendants have produced the documents. Ex.D1 is the Haakku Patra. Ex.D2 is the record of right. Exs.D3 to D8 are the mutation entries. Ex.D9 is the partition deed. Ex.D10 is the certified copy of the judgment passed in

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R.A.No.38/2006. Ex.D11 is the certified copy of the decree passed in R.A.No.38/2006, wherein Mallappa and Basappa filed a suit against defendant No.1 regarding the land bearing Sy.No.1178/2, wherein defendant No.1 is claiming to be the absolute owner of the land bearing Sy.No.1178/2. During cross-examination, it was suggested to D.W.1 that there was no prior partition between Raghavendrarao, his wife and his sons. The said suggestion was denied by D.W.1. From the perusal of the entire records, it is the case of the defendants that there was a prior partition in 1955 and the same was reduced into writing. The said document is marked as Ex.D9. The said document is a partition deed and not a memorandum of partition. The said document is inadmissible in evidence. Further, the plaintiff has denied the execution of Ex.D9. The defendants have marked the document. The mere marking of the document does not dispense its proof. The defendants have not examined any attesting witness to Ex.D9. Learned counsel for the defendants contends that the said document was executed about 30

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years back and presumption has to be drawn under Section 90 of the Indian Evidence Act. There is no dispute regarding drawing the presumption regarding the execution of the document under Section 90 of the Indian Evidence Act. Still there is no presumption regarding the contents of Ex.D9. Further, Ex.D9 does not bear the signature of the plaintiff and other co-sharers. The document seeking partition of the joint family properties cannot be relied upon, unless it is signed by all the cosharers. In the instant case, admittedly, the plaintiff is not a signatory to Ex.D9, alleged to have been executed in 1955. Ex.D9 is not binding on the plaintiff. The Hon’ble Apex Court, in the case of NARENDRA KANTE VS ANURADHA KANTE AND OTHERS reported in (2010) 2 SCC 77 , held that a deed of family settlement seeking to partition joint family properties cannot be relied upon unless signed by all the co-sharers. Admittedly, all the co-sharers are not signatories to Ex.D9. Ex.D9 is not binding on the plaintiff.

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Defendants have failed to prove that Raghavendra Deshpande effected partition among his sons and descendants of his deceased sons during his lifetime in 1955. Admittedly, suit schedule properties were owned and possessed by the original propositus Raghavendra Deshpande. The plaintiff has proved that suit schedule Sl.Nos.1 and 2 are the ancestral joint family properties of the plaintiff and the defendants.

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The plaintiff has also sought the relief of partition regarding Sy.No.1178/2 of Shirur village. It is the case of the defendants that Sy.No.1178/2 of Shirur village was the property of defendant No.1, and the plaintiff has no right to claim partition in the said property. To prove that the said property is the property of defendant No.1, defendant No.1 has produced a certified copy of the judgment passed in R.A.No.38/2006, wherein defendant No.1 filed a suit in O.S.No.100/1998 against Basappa and Mallappa. The said suit was decreed vide judgment dated 28.02.2006. Aggrieved by the judgment and decree

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passed in O.S.No.100/1998, Basappa and Mallappa have preferred an appeal in R.A.No.38/2006 on the file of the I Additional Civil Judge (Sr.Dn.), Bagalkot. The said appeal was dismissed vide judgment dated 09.08.2006. The perusal of the judgment discloses that defendant No.1 herein is the owner of Sy.No.1178/2. The plaintiff has not challenged the judgment passed in R.A.No.38/2006. The judgment and decree passed by the trial court in O.S.No.100/1998 has attained finality. Considering the material on record, the first appellate court, held that the said property is not amenable to partition and separate possession The trial court justified in dismissing the suit of the plaintiff regarding Sy.No.1178/2. In view of the above discussion, we answer point No.1 partly in the affirmative and point No.2 in the negative.

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Point No.3.

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The trial court considering the entire evidence

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on record has rightly passed the impugned judgment and preliminary decree. We do not find any grounds to

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interfere with the impugned judgment and the preliminary decree passed by the trial court. Accordingly, we answer point No.3 in the negative.

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Point No.4.

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In view of the above discussion, we proceed to pass the following;

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ORDER

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The appeal filed by defendant Nos.1 to 3 in RFA No.100223/2019 and the appeal filed by the plaintiff in RFA No.100214/2019 are hereby dismissed.

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The judgment and the preliminary decree dated 28.02.2019 passed in O.S.No.77/2015 by the learned Principal Senior Civil Judge, Bagalkot, is hereby confirmed.

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No order as to the cost.

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Sd/(ASHOK S. KINAGI) JUDGE

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Sd/(UMESH M ADIGA) JUDGE

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MBS CT:GSM List No.: 1 Sl No.: 9

Gundurao @ Bindurao v. Sushilendra S/O Pandurangrao Deshpande

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Gundurao @ Bindurao v. Sushilendra S/O Pandurangrao Deshpande

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