Raju Dundappa Solabannavar Vs Chandrappa Balappa Solabannavar

SHRI SHIVANAND DUNDAPPA SOLABANNAVAR SOALABANAVAR, AGED ABOUT 23 YEARS, OCC: AGRICULTURE, (BOTH ARE R/O. HATTARWAT, TAL: CHIKKODI, DIST: BELAGAVI)-591226.

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(BY SRI SANTOSH B. MANE, ADVOCATE)

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…APPELLANTS

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AND:

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CHANDRAPPA BALAPPA SOLABANNAVAR @ SOALABANAVAR, AGED ABOUT 69 YEARS, OCC: AGRICULTURE,

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SHANKAR BALAPPA SOLABANNAVAR

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@ SOALABANAVAR,

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AGED ABOUT 65 YEARS, OCC: AGRICULTURE,

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MALLAPPA BALAPPA SOALABANNAVAR @ SOLABANNAVAR, AGED ABOUT 57 YEARS, OCC: AGRICULTURE,

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APPASAB BALAPPA SOALABANNAVAR @ SOLABANNAVAR, AGED ABOUT 42 YEARS, OCC: AGRICULTURE,

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SANTOSH, S/O. MARUTI SOALABANNAVAR @ SOLABANNAVAR, AGED ABOUT 33 YEARS, OCC: AGRICULTURE,

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(ALL ARE R/O. HATTARWAT, TAL: CHIKKODI, DIST: BELAGAVI)- 591226.

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…RESPONDENTS

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(BY SRI. SHRIKANT T. PATIL AND SRI. ROHIT S. PATIL, ADVOCATES FOR R1-R5)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC., PRAYING TO CALL FOR THE TRIAL COURT RECORDS, PERUSE THE SAME AND SET ASIDE THE JUDGMENT AND DECREE DATED 04.11.2019 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE CHIKKODI IN O.S.NO.63/2015, IN THE INTEREST OF JUSTICE AND EQUITY.

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

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

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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 first appeal is filed by defendants No.1 and 2 under Section 96 of the Code of Civil Procedure, 1908¹ , calling in question the judgment and decree dated 04.11.2019 passed in O.S. No.63/2015 by the Court of Principal Senior Civil Judge, Chikkodi² , whereunder the suit for the partition filed by respondents No.1 to 5/plaintiffs has been decreed by the Trial Court.

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2. The parties will be referred to as per their rank

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before the Trial Court, for the sake of convenience.

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It is the case of the plaintiffs that one Girimalla Ningappa Solabannavar³ died leaving behind his two sons namely Basappa and Balappa who succeeded to the properties of the Propositus equally. It is the further case of the plaintiffs that Basappa died leaving behind a son namely Dundappa and three

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1 Hereinafter referred to as ‘ the CPC’

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2 Hereinafter referred to as ‘the Trial Court’, for short

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3 Hereinafter referred to as ‘the Propositus’,

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daughters namely Gangawwa, Akkawwa and Rupawwa, whereas Balappa died leaving behind his sons Chandrappa (plaintiff No.1), Shankar (plaintiff No.2), Mallappa (plaintiff No.3), Appasab (plaintiff No.4) and Maruti, as also the daughters namely Dundawwa, Neelawwa, Savitri and Mahadevi. It is the further case of the plaintiffs that the share of Basappa in the suit properties was changed in the name of his son Dundappa and upon Dundappa’s death in favour of his sons namely Raju (defendant No.1) and Shivanand (defendant No.2). The sons of Balappa, along with the son of Maruti namely Santosh (plaintiff No.5) filed the suit seeking for half share in the suit properties, inter alia , contending that no partition was effected between Basappa and Balappa.

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The sons of deceased Dundappa (son of deceased Basappa) were arrayed as defendants No.1 and 2, and upon service of notice, they have entered appearance through their counsel. However, no written statement was filed. Plaintiff No.1 was examined as P.W.1. Ex.P.1 to Ex.P.4 were marked in evidence. The defendants neither cross-examined P.W.1 nor adduced any oral or documentary evidence. The Trial Court

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framed three points for consideration and by the judgment and decree dated 04.11.2019 decreed the suit holding that the plaintiffs were entitled to half share of the suit properties.

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Being aggrieved the defendant No.1 and 2 have filed

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the present appeal.

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Along with the appeal, the appellants have filed I.A. No.1/2023 under Order LXI Rule 27 of the CPC seeking to place on record the certified copies of the record of rights of the suit properties.

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Learned counsel for the appellants/defendant No.1 and 2, in addition to the grounds urged in the memorandum of appeal assailing the judgment and decree passed by the Trial Court, contends that the plaintiffs have not put forth the true facts in the plaint and have not arrayed all the members of the joint family as parties to the suit. It is specifically averred that the daughters of Balappa and Basappa have not been arrayed as parties to the suit. It is further contended that three house properties belonging to the joint family have not been included in the suit. Learned counsel for the appellants also contends that

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although the defendants were served with the suit summons and they were represented by the counsel, due to various reasons including the fact that attempts were being made to amicable resolve the matter between the parties, the defendants did not file their written statement and did not contest the suit on merits. Hence, the learned counsel for the appellants seeks for allowing of the above appeal and remanding the matter to the Trial Court to afford another opportunity to the defendants to contest the suit on merits.

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Per contra, learned counsel for the

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respondents/plaintiffs justifying the judgment and decree passed by the Trial Court contends that the relationship between the parties not having been disputed, the judgment and decree passed by the Trial Court is just and proper.

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The learned counsel for the respondents/plaintiffs vehemently opposing I.A. No.1/2023 contends that despite adequate opportunity having been afforded by the Trial Court, the appellants/defendants had not produced the documents which are now produced along with I.A. No.1/2023, and no ground is made out to allow the said application. It is further

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contended that the details of the properties and the revenue records of which have been produced along with I.A. No.1/2023 are not separate properties and they are part and parcel of the suit properties. Responding to the same, learned counsel for the appellants justifies the attempt made to include the suit properties and contends that the said aspect of the matter was also required to be taken into consideration while adjudicating the suit on its merits.

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The submissions made by both the learned counsel

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have been considered, and the material on record including the records of the Trial Court have been perused.

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The questions that arise for consideration are:

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(i) Whether I.A. No.1/2023 is required to be allowed?

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(ii) Whether the judgment and decree passed by the Trial Court is liable to be interfered with?

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Regarding question No.(i)

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In the affidavit filed in support of the application, appellant No.1 has deposed that there was no dispute with

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regard to the share of the respondents/plaintiffs and that since all the properties were also not included, attempts were being made to amicably resolve the matter between the parties and that, after learning regarding filing of the final decree proceedings, the preliminary decree was sought to be challenged by the present appeal. It was further contended that the suit is not maintainable since all the family properties were not included in the suit.

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Although it is the vehement contention of the learned counsel for the respondents that the properties in respect of which the documents have been produced along with IA No.1/2023, form part and parcel of the suit properties, the said contention is disputed by the learned counsel for the appellants. It is clear that the dispute between the parties is required to be adjudicated in accordance with law and for the said purpose, the documents produced along with the application are required to be taken on record. The defendants not having appeared before the Trial Court and in view of the say of the defendants that attempts to amicably settle the matter were under way during the proceedings before the Trial Court, it is just and proper that

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I.A. No.1/2023 be allowed and the documents produced along with the application be taken on record. Accordingly, question No.(i) is answered in the affirmative.

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Regarding question No.(ii)

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Although various contentions have been urged by both the parties on the merits of the matter, it is clear that the defendants did not file their written statement and did not cross-examine P.W.1. It is also forthcoming from the genealogy of the parties that the daughters of Basappa and Balappa have not been arrayed as parties to the suit. In view of the same and in view of contention put forth on behalf of the appellants/defendants No.1 and 2 that all the family properties have not been included, notwithstanding the opposition of the learned counsel for the respondents that all the properties have been included, having regard to the fact that valuable rights in immoveable properties between the parties are required to be adjudicated and since I.A. No.1/2023 is allowed, it is just and proper that the judgment and decree passed by the Trial Court is set aside and the matter be remanded to the Trial Court to enable the appellants to contest the suit on merits and also to

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afford an other opportunity to the respondents/plaintiffs to adduce further evidence and take such steps in accordance with law having regard to the plea set up by the appellants/defendants No.1 and 2. The question No.(ii) framed for consideration is answered in the affirmative.

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In view of the aforementioned discussion, it is just

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and proper that the judgment and decree passed by the Trial Court is set aside and the matter is remanded for fresh consideration of the matter subject to certain conditions. Hence, the following:

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ORDER

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i) I.A. No.1/2023 is allowed. The documents produced along with the application are taken on record;

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ii) The above appeal is allowed in part;

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iii) The judgment and decree dated 04.11.2019 passed in O.S. No.63/2015 by the Principal Senior Civil Judge, Chikkodi, is set aside and the matter is remanded to the Trial Court for fresh consideration subject to payment of costs of Rs.15,000/- by the appellants to the

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respondents No.1 to 5/plaintiffs on or before the date of appearance before the Trial Court;

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iv) The parties shall appear before the Trial Court on 15.10.2025 without the requirement of any further notice being issued in this regard;

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v) In the event, the plaintiffs/respondents refuse to receive the costs, the appellants/defendants shall be at liberty to deposit the same before the Trial Court;

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vi) The appellants shall also file their written statement on the date of appearance before the Trial Court;

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vii) In the event, the appellants fail to pay/deposit the costs and fail to file written statement as ordered above, the appellants shall lose the benefit of this order;

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viii) Consequent to the appellants paying the costs and filing written statement, as ordered above, the Trial Court shall permit both the parties to file fresh pleadings/interlocutory applications and adduce further oral and documentary evidence in support of their respective claims, in accordance with law;

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ix) All contentions of both the parties on the merits of the matter are kept open;

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x) Having regard to the fact that the suit is of the year 2015, both the parties shall co-operate with the Trial Court in disposal of the matter without taking any unnecessary adjournment, and the Trial Court shall endeavour to dispose of the suit as expeditiously as possible.

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The Registry to transmit the records of the Trial Court together with the documents produced along with I.A. No.1/2023 forthwith.

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Sd/(S.R. KRISHNA KUMAR) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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KMS CT-MCK List No.: 1 Sl No.: 11

Raju Dundappa Solabannavar v. Chandrappa Balappa Solabannavar

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Raju Dundappa Solabannavar v. Chandrappa Balappa Solabannavar

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