Shri. Devendra Basappa Gandh Vs Smt. Shamala Chandrashekhar Pattanashetti

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1 - NC: 2025:KHC-D:9127 RFA No. 100217 of 2015

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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 REGULAR FIRST APPEAL NO.100217 OF 2015 (DEC)

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BETWEEN:

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DEVENDRA BASAPPA GANDH, AGE: 75 YEARS, OCC: AGRICULTURE, R/O: HOUSE NO.4760, GIJAI BUILDING, GOODSHED ROAD, NEAR NARTAKI TALKIES, SHAHAPUR ROAD, BELAGAVI, TQ: BELAGAVI, DIST: BELAGAVI.

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… APPELLANT

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(BY SRI. SHIVARAJ P. MUDHOL AND SRI. ANAND BAGEWADI, ADVOCATES)

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AND:

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SMT. SHAMALA W/O CHANDRASHEKAR @ CHANDUU PATTANASHETTY, SINCE DEAD REPRESENTED BY HER LR’S.,

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MALLIKARJUN RUDRAYYA KALMATH

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.08.14 12:07:13 +0530

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1A. SRI. CHANDRASHEKAR @ CHANDU S/O D. PATTANSHETTY, AGE: 90 YEARS, OCC: BUSINESS, R/O: GADHINGLAJ, TQ: GADHINGLAJ, DIST: KOLAHAPUR-416 501.

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1B. SRI. MAHESH S/O CHANDRASHEKAR @ CHANDU PATTANASHETTY, AGE: 45 YEARS, OCC: BUSINESS, R/O: GADHINGLAJ, TQ: GADHINGLAJ, DIST: KOLAHAPUR-416 501.

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1C. SMT. NEETA W/O MAHARUDRA KONE, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O: HOUSE NO.244/174, OPP. KANNADA

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HC-KAR

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7 NUMBER SCHOOL, FULUBAGALLI, TQ: BELAGAVI, DIST: BELAGAVI-590 001.

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1D. SMT. GEETA W/O RAJENDRA KHARABE, AGE: 44 YEARS, OCC: HOUSEHOLD WORK, R/O: MAHADEVGALLI, NIPPANI, TQ: NIPPANI, DIST: BELAGAVI-591 237.

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1E. SMT. NAINA W/O BASAVARAJ KONE, AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O: HOUSE NO.244/174, OPP. KANNADA 7 NUMBER SCHOOL, FULUBAGALLI, TQ: BELAGAVI, DIST: BELAGAVI-590 001.

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SMT. GANGAVVA W/O RUDRAPPA KOTABAGI, AGE: 52 YEARS, OCC: HOUSEHOLD WORK, R/O: TEACHERS COLONY, HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591 309.

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SMT. SHANTA W/O IRAPPA SHINTRE, SINCE DIED REPRESENTED BY HER LR’S.,

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3A. SHANKAR S/O IRAPPA SHINTRE, AGE: MAJOR, OCC: BUSINESS, R/O: KADAGAON, TQ: GADHINGLAJ, DIST: KOLHAPUR-416 501.

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SMT. MAHADEVI W/O AKKAPPA NAIK, AGE: 68 YEARS, OCC: HOUSEHOLD WORK, C/O: SRI. A.G. NAIK, BLOCK NO.719/132, BANDRA EAST, MUMBAI-400 001.

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SRI. BAURAO S/O BASAPPA GANDH, SINCE DEAD REPRESENTED BY LR’S.,

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5A. SHAKUNTALA W/O BABURAO GANDH, AGE: 75 YEARS, OCC: HOUSEHOLD WORK, R/O: SUNAGAR GALLI HALLADAKERI, TQ: HUKKERI, DIST: BELAGAVI.

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5B. NEELAVVA W/O RAJU SHINTRE, AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O: CHIKKODI, TQ: CHIKKODI, DIST: BELAGAVI.

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5C. SHEELA W/O SIDDANNA HANJI, AGE: 43 YEARS, OCC: HOUSEHOLD WORK, R/O: HATTARAGI, TQ: HUKKERI, DIST: BELAGAVI.

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5D. GIRISH S/O BABURAO GANDH, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: SUNAGAR GALLI, HALLADAKERI, HUKKERI, DIST: BELAGAVI.

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5E. VIJAYALAXMI W/O SURESH KORI, AGE: 35 YEARS, OCC: HOUSEHOLD WORK, R/O: SHIVAJI NAGAR, TQ: BELAGAVI, DIST: BELAGAVI.

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SRI. SHRISHAIL BASAPPA GANDH, AGE: 78 YEARS, OCC: AGRICULTURE, R/O: SUNAGAR GALLI, HALLDAKERI, TQ: HUKKERI, DIST: BELAGAVI-591 309.

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SRI. JAGADISH SRIKANT GANDH, AGE: 43 YEARS, OCC: SERVICE AND AGRICULTURE, R/O: HUKKERI, NOW RESIDING AT: HIRA SUGAR FACTORY QUARTERS, SANKESHWAR, TQ: HUKKERI, DIST: BELAGAVI-591 309.

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SRI. MAHESH @ RAJU S/O SRIKANT GANDH, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: TEACHERS COLONY, HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591 309.

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SMT. SHAKUNTALA W/O SRIKAN GANDH, SINCE DIED BY HER LR’S., RESPONDENT NO.7 AND 8 ARE LEGAL HEIRS AND THEY ARE ALREADY ON RECORD.

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SRI. CHANNABASAPPA S/O ISHWARAPPA GANDH, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: SUNAGAR GALLI, HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591 309.

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SMT. SADHANA W/O BASAVARAJ MAHANTASHETTI, AGE: 60 YEARS, OCC: HOUSEHOLD WORK,

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HC-KAR

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R/O: SUNAGAR GALLI, HUKKERI,

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TQ: HUKKERI, DIST: BELAGAVI-591 309. 11. SMT. ANNAPURNA W/O CHANNABASAPPA GANDH, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O: KATAKOL, TQ: RAMADURGA, DIST: BELAGAVI-591 309.

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… RESPONDENTS

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(BY SRI. SHIVARAJ BALLOLI, ADVOCATE FOR R1C, R1D, R1E AND R3A, R6 TO R9; R1B-SERVED; R5A, R5E, R2, R4, R11-SERVED; R5B, R5D AND R10-HELD SUFFICIENT)

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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: 02.09.2015 PASSED IN O.S. NO.1/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, HUKKERI AND ALLOW THE APPEAL WITH COSTS THROUGHOUT BY DISMISSING THE SUIT IN O.S. NO.1/2013.

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

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ORAL JUDGMENT

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

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This appeal is filed by defendant No.1 challenging the

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judgment and decree dated 02.09.2015 passed in O.S.No.01/2013 on the file of Senior Civil Judge, Hukkeri¹ ,

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thereby, the suit filed for declaration is decreed.

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1 Hereinafter referred to as ‘the Trial Court’ for short

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HC-KAR

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For the sake of convenience and easy

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

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The plaintiffs have filed suit for declaration declaring that they are the owners of the suit property bearing R.S.No.329/2B measuring 03 acres 07 guntas situated at Hukkeri. It is the claim of the plaintiffs that the plaintiffs and defendant No.2 are having 1/4^th share each in the suit property. The plaintiffs and defendant Nos.1 to 4 are brothers and sisters and defendant Nos.5 to 8 are children of plaintiffs’ brother.

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Defendant No.1 herein had filed suit in O.S.NO.73/2005 for partition and separate possession against his brothers and sisters, which ended in a compromise in collusion with only the brothers. In the suit in O.S.No.73/2005, the plaintiffs herein were not parties, though initially these plaintiffs were arrayed as defendants in O.S.No.73/2005, but they have been deleted from the suit. Later on, the suit in O.S.No.73/2005 was ended in

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compromise decree as per Ex.P-2 between the brothers, excluding the plaintiffs, who are sisters. In the said compromise, O.S.No.73/2005, the suit property was given share to defendant No.1 exclusively. The plaintiffs, on the premise that they are also having share in the suit property and their source of right is from the compromise decree in O.S.No.73/2005, but defendant No.1 had not given them the said property. Therefore, filed suit for declaration.

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Defendant No.1 had appeared and filed written statement and contended that in O.S.No.73/2005, the suit property was given exclusively share to defendant No.1 (who was plaintiff in O.S.No.73/2005). Therefore, the plaintiffs do not have any right, interest or claim over the suit property.

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Upon the pleadings, the Trial Court has framed the following issues:

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1. Whether the plaintiffs prove that they and defendant No.2 are owners of suit property?

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2. Whether the suit is bad for non-joinder of necessary parties?

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3. Whether suit is maintainable without relief of partition and separate possession?

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4. What order or decree?

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In order to prove the case, plaintiff No.1 is examined as PW-1 and got marked documentary evidence as Exs.P-1 and P-2. On behalf of defendants, defendant No.1 is examined as DW-1 and got marked documentary evidence as Exs.D-1 to D-19.

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The Trial Court has decreed the suit declaring that the plaintiffs and defendant No.2 are the owners of suit property bearing R.S.No.329/2B measuring 03 acres 07 guntas of land in Hukkeri. The reason assigned by the Trial Court is that, in the compromise decree in O.S.No.73/2005 at clause (b) in page No.6, the suit land bearing R.S.No.329/2B was given to the share to plaintiff in O.S.No.73/2005, who is defendant No.1 in the present suit. It is further averred in the compromise decree that if any dispute arises in the future, the same would be

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resolved by the plaintiff in O.S.No.73/2005 (defendant No.1 in the present case). Therefore, on this basis, the Trial Court decreed the suit on the premise that this suit land was also given to the plaintiffs, who are sisters herein along with defendant No.1.

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Being aggrieved by it, defendant No.1 has preferred this appeal before this Court by raising various grounds in the memorandum of appeal and the learned counsel for the appellant-defendant No.1 submitted that the suit filed only against suit land is not maintainable, as there are other properties also. However, the plaintiffs have filed suit for declaration on the pretext that in clause (b) at page No.6 in Ex.P-2/compromise decree share is also given to the plaintiffs herein, but which is not found in the compromise decree. Therefore, the plaintiffs do not have source of right to file suit for declaration. Hence, prays to allow the appeal.

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On the other hand, learned counsel for the plaintiffs-respondents submitted that the right of plaintiffs

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is crystallized as per compromise decree/Ex.P-2 in clause

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(b) that shares were also given to plaintiffs of the suit schedule land, but defendant No.1 was not given said land to the plaintiffs therefore, appreciating this the Trial Court is correct in decreeing the suit. Therefore, prays to dismiss

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the appeal.

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Upon considering the rival submissions and perusing the materials on record, the following points arise for my consideration:

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i. Whether, under the facts and circumstances involved in the case, the plaintiffs prove that their right of source to file a suit for declaration is from Ex.P-2/compromise decree?

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ii. Whether, the judgment and decree passed by the Trial Court require interference?

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The plaintiffs have filed suit for declaration

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claiming that they are owners of the suit schedule land by stating that by virtue of Ex.P-2/compromise decree, they

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have become owners of the suit schedule land. Therefore, claiming their source of right from Ex.P-2/compromise decree, the suit is filed for declaration.

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Admittedly, the plaintiffs and defendants have total 9 properties. One among them is suit schedule land. Defendant No.1 herein was the plaintiff in O.S.No.73/2005, which filed suit for partition and separate possession and this O.S.No.73/2005 was ended in compromise. Though in the suit in O.S.No.73/2005, the plaintiffs were initially arrayed as defendants, but later on these plaintiffs, who are sisters and were defendants in that suit. Therefore, the suit in O.S.No.73/2005 remained only between brothers and was ended in compromise in Lok Adalat.

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Upon perusal of Ex.P-2/compromise decree, in clause (b) at page No.6, the suit schedule land was given to the share of plaintiffs in O.S.No.73/2005 (who is defendant No.1 in the present suit) and his brothers. The other brothers have become owners of the suit schedule

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land, but upon careful reading of the contents in clause (b) at page No.6 in compromise decree, there is no whisper that this suit schedule land was also given to the plaintiffs herein. There is only recital in the compromise decree that if there would be any dispute arises, then that would be resolved by defendant No.1. Except this, the recital in clause (b) at page No.6, there is no share given to the plaintiffs herein as they are sisters. When this being the fact, the plaintiffs certainly do not have source of right to claim declaration by virtue of this compromise decree.

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The plaintiffs have source of right for claiming their share by way of coparcenership. When this being the fact that the plaintiffs can claim properties by virtue of coparcenership then the plaintiffs ought to have filed suit for partition by including all the properties. However, the plaintiffs have filed suit for declaration, only choosing the suit land, which is one among total 9 properties as admitted by both the parties. Further, the plaintiffs have not challenged this Ex.P-2/compromise decree.

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Admittedly, there were no shares given to plaintiffs in the

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said compromise decree; therefore, the plaintiffs have committed an error in choosing only the suit land and filing suit for declaration. Hence, the remedy of the plaintiffs lies by filing suit for partition by including all the properties if the plaintiffs find that Ex.P-2/compromise decree is inequitable. Therefore, by reserving liberty to the plaintiffs to file suit for partition, the present appeal is allowed and set aside the judgment and decree passed by

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the Trial Court. Accordingly, I answer point No.(i) in the Negative and point No.(ii) in the Affirmative.

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