Sri. Irayya Alias Veerayya S/O. Sangayya Ganachari Alias Ankalimath Vs Smt. Channamma W/O. Gangayya Ganachari Alias Ankalimath

SRI. IRAYYA @ VEERAYYA S/O. SANGAYYA GANACHARI @ ANKALIMATH, AGE: 62 YEARS, OCC: AGRICULTURE, R/O. GOUDRA ONI, SHIROL, TQ: NARAGUND, DIST: GADAG-582207.

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SRI. PRABHAYYA @ PRABHAKAR S/O. SANGAYYA GANACHARI @ ANKALIMATH, AGE: 56 YEARS, OCC: AGRICULTURE, R/O. GOUDRA ONI, SHIROL, TQ: NARAGUND, DIST: GADAG-582207.

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YASHAVANT NARAYANKAR

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGHCOURT OF KARNATAKA DHARWAD BENCH DHARWAD

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(BY SRI. ARAVIND D. KULKARNI, ADVOCATE)

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AND:

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…APPELLANTS

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SMT. CHANNAMMA W/O. GANGAYYA GANACHARI @ ANKALIMATH, AGE: 60 YEARS, OCC: HOUSEHOLD, R/O. MARIGUDDI ONI, SHIROL, TQ: NARAGUND, DIST: GADAG-582207.

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SMT. JAYASHREE W/O. MAHANTESH HIREMATH, AGE: 38 YEARS, OCC: HOUSEHOLD WORK, R/O. MARIGUDDI ONI, SHIROL, TQ: NARAGUND, DIST: GADAG-582207.

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HC-KAR

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SMT. VANI W/O. SHIVAYYA HIREMATH, AGE: 36 YEARS, OCC: HOUSEHOLD WORK, R/O. MARIGUDDI ONI, SHIROL, TQ: NARAGUND, DIST: GADAG-582207.

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SMT. RAJESHWARI W/O. UMESH YAVAGALMATH, AGE: 34 YEARS, OCC: HOUSEHOLD WORK, R/O. MARIGUDDI ONI, SHIROL, TQ: NARAGUND, DIST: GADAG-582207.

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SMT. MEENAXI W/O. SHASHANKAYYA MATHAD, AGE: 32 YEARS, OCC: HOUSEHOLD WORK, R/O. MARIGUDDI ONI, SHIROL, TQ: NARAGUND, DIST: GADAG-582207.

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SMT. UMMAKKA W/O. SHIVANANDAYYA GANACHARI @ ANKALIMATH, AGE: 62 YEARS, OCC: HOUSEHOLD WORK, R/O. MARIGUDDI ONI, SHIROL, TQ: NARAGUND, DIST: GADAG-582207.

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SMT. SHIVALEELA W/O. VEERAYYA HIREMATH, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O. MARIGUDDI ONI, SHIROL, TQ: NARAGUND, DIST: GADAG-582207.

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SMT. SHOBHA W/O. CHANDRAYYA HIREMATH, AGE: 43 YEARS, OCC: HOUSEHOLD WORK, R/O. MARIGUDDI ONI, SHIROL, TQ: NARAGUND, DIST: GADAG-582207.

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SMT. SHAILA W/O. BASAYYA HIREMATH,

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AGE: 41 YEARS, OCC: HOUSEHOLD WORK,

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HC-KAR

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R/O. GADGIMATH ONI, KERUR, TQ: BADAMI, DIST: BAGALKOT-587206.

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SMT. GIRIJA W/O. CHARANTAYYA HIREMATH, AGE: 39 YEARS, OCC: HOUSEHOLD WORK, R/O. TEACHERS COLONY, GAJENDRAGAD, DIST: GADAG-582114.

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SMT. VEENA W/O. SHARANAYYA CHARANTIMATH, AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O. GOUDRA ONI, SHIROL, TQ: NARAGUND, DIST: GADAG-582207.

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SMT. RATNA W/O. VEERAYYA HIREMATH, AGE: 62 YEARS, OCC: HOUSEHOLD WORK, R/O. NEAR SHIVANAND MATH, SANGOLLI RAYANNA NAGAR, BHAIRIDEVARAKOPPA, HUBBALLI, DIST: DHARWAD-580625.

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SMT. SHOBHA W/O. BASAYYA GANACHARI @ ANKALIMATH, AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O. GOUDRA ONI, SHIROL, TQ: NARAGUND, DIST: GADAG-582207.

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SMT. SHASHIKALA W/O. SHASHIDHAR HIREMATH, AGE: 52 YEARS, OCC: HOUSEHOLD WORK, R/O. H.NO.3, 7^TH MAIN, MUTYAL NAGAR, MATTIKERI, BANGALORE-560 013.

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SMT. LAXMIBAI W/O. IRAYYA @ VEERAYYA GANACHARI @ ANKALIMATH, AGE: 54 YEARS, OCC: HOUSEHOLD WORK, R/O. GOUDRA ONI, SHIROL, TQ: NARAGUND, DIST: GADAG-582207.

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HC-KAR

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SMT. JAYALAXMI @ VIJAYALAXMI W/O. PRABHAYYA GANACHARI @ ANKALIMATH, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O. GOUDRA ONI, SHIROL, TQ: NARAGUND, DIST: GADAG-582207.

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SHREE JAGADGURU GURUSIDDESHWAR VIDYAVARDAKA AND SANSKRITIK INSTITUION GULEDAGUDDA, TQ: BADAMI, DIST: BAGALKOT-587206.

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SMT. GURUDEVI W/O. JAMBAYYA SHANAWADAMATH, AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O. DURGA DEVI ONI, SHIROL, TQ: NARAGUND, DIST: GADAG-582207.

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…RESPONDENTS

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(BY SRI. L.M. KURAHATTI, ADVOCATE FPR R8 & R10; SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE FOR R18; NOTICE TO R1, R3, R4, R5, R6, R7, R11, R12, R13, R15, R16 & R17 SERVED;

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NOTICE TO R2, R9 & R14 HELD SUFFICIENT)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO ALLOW THE APPEAL AND BY SETTING ASIDE THE JUDGMENT AND DECREE PASSED IN O.S.NO.159/2020 DATED 08.12.2021 PASSED BY PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, GADAG, CONSEQUENTLY THE SUIT O.S.159/2020 BE DISMISSED WITH COSTS AND ETC.

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

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CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

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The present appeal is filed under Section 96 of the Civil Procedure Code by the defendant Nos.13 and 14 calling in question the judgement and decree dated 08.12.2021 passed in OS No.159/2020 by the Prl. Senior Civil Judge and CJM, Gadag,¹ whereunder, the suit filed by the respondent No.18/plaintiff has been decreed by the trial Court.

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The parties would be referred to as per their ranking before the trial Court.

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It is the case of the plaintiff that the propositus Sangayya died on 23.06.1984 and his first wife by name Shivagangavva predeceased him leaving behind two sons viz., Gangayya and Shivanandayya. Gangayya died on 03.05.2000 leaving behind his wife Channamma (Defendant No.1) and four daughters viz., Jayashree(Defendant No.2), Vani (Defendant No.3), Rajeshwari(Defendant No.4) and

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1 Hereinafter for short’trial Court’

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HC-KAR

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Meenakshi(Defendant No.5).The second son Shivanandayya died on 30.08.1987 leaving behind his wife Umakka (Defendant No.6) and five daughters viz., Shivaleela (Defendant No.7), Shobha (Defendant No.8), Shaila (Defendant No.9), Girija (Defendant No.10) and Veena (Defendant No.11).

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It is further case of the prosecution that after the death of his first wife, the propositus married one Parvetavva and from their wedlock, they had three sons and three daughters viz., Irayya (Defendant No.13), Prabayya (Defendant No.14), Basayya @ Basavaraj (Defendant No.15), Ratna (Defendant No.12), Gurudevi-plaintiff and Shashikala (Defendant No.16). The second wife Parvethavva died on 10.01.2015 and Basayya alias Basavarj died on 05.06.2020 leaving his wife Smt.Shobha (Defendant No.16) and they have no issues. Defendant No.17 is wife of defendant No.13. Defendant No.18 is wife of defendant No.14. Defendant No.19 is a stranger to the property. It is

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HC-KAR

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contended that some of the properties were transferred in the name of defendant Nos.7 to 19.

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It is the case of the plaintiff that suit schedule properties are the joint family ancestral properties of the plaintiff and defendant Nos.1 to 16 and mutation entries of some of the properties were illegally changed without there being any partition. Hence, the plaintiff filed a suit for partition seeking 1/8^th share in the suit properties.

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The defendant Nos.1 to 12, 15, 17 to 19 were placed exparte. Defendant/appellant Nos. 13 and 14 appeared through their counsel, but no written statement was filed. The defendant No.16 appeared through a counsel and filed the statement. In the written statement filed by defendant No.16, she admitted the relationship and also admitted that the suit properties were the joint family properties. The defendant No.16 also sought for 1/8^th share in suit properties and made a counter claim for the same.

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HC-KAR

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Based on the pleadings of the parties, the trial

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Court framed the following issues:-

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1. Whether the plaintiff proves that, the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants and there was no partition between them?

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2. Whether the plaintiff proves that, the defendant No.13 created will dated 09.10.2017 as contended in his plaint averments and it is not binding on his share?

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3. Whether the plaintiff is entitled for relief as prayed in the suit?

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4. What order or decree?

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The plaintiff examined herself as PW1 and

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marked Exhibit P1 to P35. Two witnesses were examined as PW2 and PW3. The defendant No.16 examined herself as

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DW1. However no documentary evidences were produced.

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The trial Court, by its judgment and decree dated

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08.12.2021 passed the following order:-

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“The suit of the plaintiff is hereby decreed.

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Hereby declared that, the plaintiff, and Def.no.12 to 16 are entitled for share at 1/8^th each in the suit schedule properties.

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Further, it is declared that Def. no.1 to 5 are entitled for share at 1/8th jointly in the suit properties.

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Further, it is declared that Def.no.6 to 11 are entitled for share at 1/8th jointly in the suit properties. Draw Preliminarily Decree accordingly.”

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Being aggrieved, the defendants 13 and 14 have

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Preferred the above appeal.

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Heard the submissions of learned counsel for the appellant and learned counsel for respondent No.18.

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The only point that arise for consideration is “whether the judgement and decree passed by the trial Court warrants interference?”

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Although, various contentions have been urged by learned counsel for the appellant, assailing the judgement and decree passed by the trial Court on the merits of the matter, one of the main contentions urged is that the counsel representing the appellants had retired from the case and that the trial Court, during the COVID-19

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pandemic period has completed the trial in the suit expeditiously without affording an adequate opportunity to the appellants/defendants 13 and 14 to contest the suit. It is further contended that there was no effective contest to the claim made by the plaintiff inasmuch as the defendant No.16, who was the only defendant, who contested the suit and also sailed along with the plaintiff and claimed for a share in the suit properties. Hence, learned counsel seeks for remanding the matter and affording another opportunity to the appellants to contest the suit.

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Per contra, learned counsel for the respondent No.18-plaitniff vehemently opposed the submissions made on behalf of the appellants and contends that the appellants/defendant Nos. 13 and 14 having been afforded an adequate opportunity to contest the suit and the said opportunity having not been availed, the trial Court was justified in decreeing the suit. Hence, it is contended that the appeal lacks merits and is liable to be rejected.

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HC-KAR

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As noticed above, although various contentions

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are urged on the merits of the matter where under it is contended that the trial Court erred in decreeing the suit of the plaintiff, it is pertinent to note that defendant Nos.13 and 14 entered appearance through their counsel. However no written statement was filed. It is further forthcoming from a certified copy of the order sheet of the trial Court which had been placed on record by the learned counsel for the appellant that on 15.11.2021, PW.1 was cross examined in chief, the EX.P1 to P35 were marked in evidence and learned counsel for the defendant No.16 also cross examined PW.1 on the same day. The cross examination on behalf of the other defendants was taken as nil and the matter was posted for further evidence of the plaintiff on 29.11.2021. On 29.11.21, the plaintiff adduced the evidence of PW2 and PW3, on which day the learned counsel for defendant No.16 submitted that he had no cross examination and accordingly, the matter was posted to 06.12.2021 for defendants’ evidence. The defendant No.16

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adduced evidence as DW1 and he was cross examined by the learned counsel for the plaintiff on the same day, the arguments were also heard on the same day and the matter was posted for judgment on 08.12.2021 on which day the suit was decreed.

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It is clearly forthcoming from the aforementioned that within a period of less than one month, the entire trial of the suit was completed and the judgment was rendered. It is also pertinent to note that learned counsel appearing for the defendant Nos.13 and 14 had retired from the case.

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Having regard to the aforementioned factual matrix of the matter, in view of the fact that the defendant Nos.13 and 14 have not file their written statement and since they did not cross examine the witnesses examined by the plaintiff and defendant No.16, as also did not adduce any oral or documentary evidence, it is just a proper, having regard to the fact that valuable rights of the parties have been adjudicated in the suit as also rights in the

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immovable properties, that the appellants/defendant Nos.13 and 14 be afforded another opportunity to contest the suit on its merits with certain conditions. Accordingly, the point framed for consideration is answered in the affirmative.

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In view of the aforementioned, the following:

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ORDER

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i) The appeal is allowed; ii) The judgment and decree passed in OS No.159/2020 dated 08.12.2021 passed by the Prl. Senior Civil Judge and CJM, Gadag is set aside;

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iii) The appellants and respondent No.18 shall appear before the trial Court in OS No.159/2020 on 15.10.2025 without requirement of any further notice in this regard;

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iv) The appellants/defendant Nos.13 and 14 shall file their written statement on the

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date their appearance before the trial Court;

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v) Consequent to appearance of the parties and the written statement of defendant Nos.13 and 14 being filed, the trial Court shall proceed further in accordance with law by affording another opportunity to the defendant No.13 and 14 to cross examine the witnesses examined in the above case as also by affording an opportunity to defendant Nos.13 and 14 to adduce evidence and conduct further proceedings in accordance with law.

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vi) All contentions of the parties on the merits of the matter are kept open.

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vii) It shall be open to the parties to cooperate with the trial Court for expeditious disposal of the matter.

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viii) Liberty is reserved to all parties to adduce evidence/further evidence and if such a request is made, trial court shall consider the same adequately in

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accordance with law.

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Sd/(S.R. KRISHNA KUMAR) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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HMB CT-MCK List No.: 1 Sl No.: 26

Sri. Irayya Alias Veerayya S/O. Sangayya Ganachari Alias Ankalimath v. Smt. Channamma W/O. Gangayya Ganachari Alias Ankalimath

Case brief

What is this about?

Sri. Irayya Alias Veerayya S/O. Sangayya Ganachari Alias Ankalimath v. Smt. Channamma W/O. Gangayya Ganachari Alias Ankalimath

Case brief

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What did the court decide?

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