Extracted from the PDF above. The PDF is authoritative.
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NC: 2025:KHC-D:2240-DB RFA No. 100135 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 1ST DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO.100135 OF 2021 (PAR/POS)
BETWEEN:
1. SRI. RUDRAYYA S/O GADAGAYYA GUDDADAMATH, AGE. 71 YEARS, OCC. AGRICULTURE, R/O. KELGERI VILLAGE, TQ. DHARWAD-580007. …APPELLANT (BY SRI. SACHIN C KULKARNI AND SRI. VINAYAK S KULKARNI, ADVS)
AND:
1. SMT. NAGAVVA W/O BASALINGAYYA GUDDADAMATH AGE. 72 YEARS, OCC. HOUSEHOLD, R/O. KELGERI VILLAGE, TQ. DHARWAD-580007. 2. BASAVVA @ ROOPA W/O KUMARSWAMY HIREMATH, AGE. 41 YEARS, OCC. HOUSEHOLD, R/O. HALAKUSUGAL, TQ. NAVALGUND-582208. 3. SMT. GOURAVVA W/O GADAGAYYA GUDDADMATH, AGE. 87 YEARS, OCC. HOUSEHOLD, R/O. KELGERI VILLAGE, TQ. DHARWAD-580007. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:16:22 +0530
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4. SHIVAYYA S/O GADAGAYYA GUDDADMATH AGE. 75 YEARS, OCC. AGRICULTURE, R/O. KELGERI VILLAGE, TQ. DHARWAD-580007. 5. SMT. GANGAVVA W/O MRUTYUNJAYA SHIVAYYANAVARMATH AGE. 71 YEARS, OCC. HOUSEHOLD, R/O. KELGERI VILLAGE, TQ. DHARWAD-580007. 6. SMT. SHANTAVVA W/O GADAGAYYA BENDIGERIMATH AGE. 67 YEARS, OCC. HOUSEHOLD, R/O. KELGERI VILLAGE, TQ. DHARWAD-580007. 7. CHANNABASAYYA S/O GADAGAYYA GUDDADMATH AGE. 67 YEARS, OCC. RETD/AGRICULTURE, R/O. KELGERI VILLAGE, TQ. DHARWAD-580007. 8. MADEVI W/O MADIVALAYYA BEGUR AGE. 57 YEARS, OCC. HOUSEHOLD, R/O. KELGERI VILLAGE, TQ. DHARWAD-580007. 9. SMT. BASAWWA W/O BASALINGAYYA GUDDADMATH, AGE. 65 YEARS, OCC. HOUSEHOLD, R/O. KELGERI VILLAGE, TQ. DHARWAD-580007. 10. KUMAR S/O SHIVALINGAYYA MALIMATH AGE. 37 YEARS, OCC. AGRICULTURE, R/O. BALAGANUR, TQ. GADAG-582101. - 3 -
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11. SMT. SHIVAGANGAVVA W/O BASALINGAYYA GUDDADMATH AGE. 55 YEARS, OCC. HOUSEHOLD, R/O. KITTUR, DIST. BELAGAVI-591115. 12. SHIVAKUMAR S/O BASALINGAYYA GUDDADMATH, AGE. 31 YEARS, OCC. PVT. SERVICE, R/O. KITTUR, DIST. BELAGAVI-591115. 13. LAXMI D/O BASALINGAYYA GUDDADMATH AGE. 27 YEARS, OCC. HOUSEHOLD, R/O. KITTUR, DIST. BELAGAVI-591115. …RESPONDENTS
(BY SRI. RAGHAVENDRA A PUROHIT, ADV FOR R1 TO R4 & R8 SRI. PRASHANT S KADADEVAR, ADV FOR R7, NOTICE TO R5, R6, R9 TO R13 ARE SERVED, BUT UNREPRESENTED.)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 20.12.2019 PASSED IN O.S.NO.548/2014 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD, PARTLY DECREEING THE SUIT FILED FOR DECLARATION, PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER :
CORAM:
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA
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NC: 2025:KHC-D:2240-DB RFA No. 100135 of 2021
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
This Regular First Appeal is filed by the appellant, challenging the judgment and preliminary decree dated 20.12.2019 passed in O.S.No.548/2014 by the learned III Additional Senior Civil Judge and CJM, Dharwad.
2. For convenience parties are referred to based on their rankings before the trial Court. The appellant was defendant No.4, respondents No.1 and 2 were the plaintiffs, and respondents No.3 to 13 were the other defendants.
3.
Brief facts leading rise to the filing of this appeal are as under:
The plaintiff filed a suit against the defendants seeking the relief of declaration, partition and separate possession regarding suit schedule properties. It is the case of the plaintiff that plaintiff No.1 is the legally wedded wife of the late Basalingaiah. Her husband is one among the four sons of, and three daughters of the original propositus Gadigayya Gurusangayya Guddadamath. Her husband predeceased the propositus. Thus, while getting the Varsa of propositus, who
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died on 09.01.2011, the name of her husband was not mutated in the Varsa certificate, and later by filing vardis, only the names of the other brothers and sisters of her husband came to be mutated in the record of rights of the family properties. The suit properties are the joint family properties. Her husband had got 1/8th share in the suit schedule properties. The plaintiffs demanded partition and separate possession, but the defendants refused to effect partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 4. Defendant no.2 filed a written statement. Defendants No.1, 3 to 7 filed a memo adopting the written statement filed by defendant No.2. Defendant No.9 filed a written statement. Defendant No.9 died during the pendency of the suit. His legal representatives were brought on record. Defendant No.9(a) was brought on record, and filed a written statement and counter claim. Defendant No.10 filed a written statement reiterating the written statement, filed by defendant No.9. - 6 -
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5. Defendant No.2 in his written statement denied the averments made in the plaint, and it is contended that, the plaintiffs have not included another property bearing Sy.No.510/1B measuring 1 acre 30 guntas situated at Kelageri village, Dharwad Taluk. Without including the same, the suit for partition and separate possession is incomplete. 6. It is also contended that, the Genealogy mentioned in paragraph No.3 of the plaint is wrong and improper. The plaintiffs are not at all concerned to the family of Basalingaiah. It is stated that, the deceased Basalingaiah had a legally wedded wife i.e., Girija @ Channamma who is still alive, and residing at Balaganur village, Gadag Taluk. She has no issues.
Plaintiff No.1 is not a legally wedded wife. Smt. Girija @ Channamma after the demise of Basalingaiah used to reside at her parents house in Balaganur village. She has not returned to Dharwad. All the rights over the suit properties were relinquished in favour of defendants No.1 to 7 in the presence of the elders of the village. The plaintiffs are no way concerned to the family of the defendants. Hence, they have no right, title, or interest over the suit properties. Hence, prays to dismiss the suit of the plaintiffs. - 7 -
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7. Defendant No.9 filed a written statement admitting the description of the property, and genealogy as narrated in paragraph No.3 of the plaint, and seeks her share in the suit properties. Defendant No.10 filed a written statement reiterating the written statement filed by defendant No.9. 8. After the demise of defendant No.9 the legal representatives of defendant No.9 i.e., defendant No.9(a) was brought on record, and filed a written statement and counter- claim. It is contended that, the suit schedule properties are the joint family properties of the plaintiffs and defendants and defendant No.9 is the wife of deceased Basalingaiah. Defendant No.9 is having a share in her husband’s property. It is contended that defendant No.9 executed a will on 14.10.2016 bequeathing her share over the properties to defendant No.9(a) and he was cultivating the suit land. Defendant No.9 passed away on 06.11.2016. Defendant No.9(a) became the absolute owner, based on the will dated 14.10.2016. Hence, prays to decree the suit and counter-claim. 9. The plaintiffs filed a rejoinder denying all the averments made in the counter-claim by defendant No.9(a) and
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submitted that defendant No.9(a) is not a legal heir of defendant No.9.
It is contended that, Defendant No.9(a) without seeking probate in accordance with law for the will, he cannot seek for a right as a legal heir of defendant No.9. Hence, prays to dismiss the counter claim of defendant No.9(a). 10. The trial Court, based on the above pleadings, framed the following issues and additional issues: ISSUES
1) Whether the plaintiff No.1 proves that she is the wife of deceased Basalingayya? 2) Whether the plaintiffs prove that the suit properties are ancestral joint family properties? 3) Whether the plaintiffs prove that they are entitled for partition of the suit properties? If so, what would be their share? 4) What order or decree ? ADDITIONAL ISSUES FRAMED ON 6-11-2019
1. Whether the defendant No.9(a) proves that the deceased defendant No.9 executed Will in his favour on 14-10-2016 for her share in the suit properties? 11. The plaintiffs to substantiate their case, examined plaintiff No.2 as PW-1, also examined one witness as PW-2 and
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marked 12 documents as Exs.P.1 to P.12. On the other hand, defendant No.6 was examined as DW-1, and marked 4 documents as Exs.D.1 to D.4. The trial Court, after recording the evidence, hearing on both sides, and on the assessment of oral and documentary evidence, answered issue No.1 in the affirmative, issue No.2 and 3, partly in the affirmative, additional issue No.1 in the negative, and issue No.4 as per the final order. 12. The suit of the plaintiff was partly decreed vide
judgment dated 20.12.2019. It is declared and ordered that plaintiff No.2 is entitled to 1/3rd share in 1/8th share of the deceased Basalingayya in the suit schedule block No.535/1, block No.518 and block No.510/1P and the counter-claim of the defendant No.9(a) was dismissed. Defendant No.4, aggrieved by the judgment and preliminary decree dated 20.12.2019, filed this Regular First Appeal.
13.
Learned counsel for defendant No.4 submits that, the judgment and decree passed by the trial Court is not maintainable. He further submits that, defendant No.4 learnt about the impugned judgment, during the first week of
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September 2020, when he was at his house and elders in the village enlightened him that, he should be partitioning even the property which is bequeathed to him by his father to the plaintiff No.2 and other siblings. Defendant No.4 was stunned, and he went to meet his brothers. They did not entertain him. Defendant No.4 met the lawyer. He submits that defendant No.2 without the knowledge of defendant No.4 submitted an application, seeking an amendment to the written statement by way of amendment. Property bearing No.510/1P was included in the suit schedule property. Defendant No.4 did not know inclusion of the said property. He submits that, defendant No.4 became the owner by a registered sale deed dated 10.08.2000. The property bearing No.510/1P is not available for partition and plaintiffs have no right to claim a share in the said property. Hence, the impugned judgment passed by the trial Court is arbitrary and erroneous. Accordingly, prays to allow the appeal.
14. Per contra, learned counsel for the plaintiffs supporting the impugned judgment submits that, the suit schedule properties are the ancestral joint family properties of the plaintiffs and defendants. The plaintiffs and defendants are
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the members of the Hindu joint family, and no partition is effected in the family of the plaintiffs and defendants. He submits that defendant No.4 has not filed an independent written statement. He further submits that, defendants No.1 to 7 were represented by the same counsel. Defendant No.4 to harass the plaintiffs has filed this regular first appeal. He further submits that, defendant No.4 has not filed an independent written statement nor entered the witness box. Defendant No.4 has no right to challenge the impugned
judgment and preliminary decree. The trial Court, has properly appreciated the entire material on record, and has rightly passed the impugned judgment. Hence, on these grounds, he prays to dismiss the appeal.
15. Perused the records, and considered the
submissions of the learned counsel for the parties. 16. The points, that arise for our consideration are: 1) Whether the plaintiff No.1 prove that she is the legally wedded wife of deceased Basalingayya? 2) Whether plaintiffs prove that suit schedule properties are the ancestral joint family properties? 3) Whether defendant No.4 prove that the judgment and decree passed by the trial Court is perverse? - 12 -
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4) What order or decree? Re. points No.1 and 2:
17. Points No.1 and 2 are interconnected, and they are taken up together for common discussion, to avoid the repetition of facts. 18. Plaintiffs to prove their case, plaintiff No.2 was examined as PW-1. She reiterated the plaint averments in the examination-in-chief, and to prove that, the suit schedule properties are the ancestral joint family properties, produced the documents as Exs.P.1 to P.12. Ex.P.1 is the RTC extract of Block No.535/1 measuring 2 acres 33 guntas situated at Kelageri village, standing in the name of defendants No.1 to 7. Ex.P.2 is the RTC extract of Block No.526 measuring 23 guntas situated at Kelageri village which discloses that in column No.9, it is mentioned as the Government and it is jointly standing in the name of defendants No.1 to 7. Ex.P.3 is the RTC extract of block No.530, Ex.P.4 is the RTC extract of block No.525, Ex.P.5 is the RTC extract of Block No.521, Ex.P.6 is the RTC extract of Block No.518, Ex.P.7 is the RTC extract of Block No.510/1, Ex.P.8 is the RTC extract of Block No.4/2A, Ex.P.9 is the RTC
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extract of Block No.155/1, Ex.P.10 is the certified copy of the Voters list (subject to objections), Ex.P.11 is the certified copy of the voters list for the year 1998, Ex.P.12 is the voters list of the year 2009. 18. During the course of cross-examination of PW1 by the counsel for defendants No.1 to 7, she pleads ignorance that Girija @ Channamma is related to her she does not know Girija @ Channamma is the first wife of Basalingayya and it was suggested that the suit schedule properties are the ancestral properties.
Further, during the course of cross-examination by defendant No.9, PW-1 admitted that, the suit is filed by the plaintiff for a Varsa and also admitted that the suit schedule properties are the ancestral properties, she pleaded ignorance that, she does not know defendant No.9 and she did not know that, defendant No.9 is the first wife of Basalingayya. She does not know that, after the marriage of Girija @ Channamma, she was residing at Belaganur village in her sister’s house. She does not know that, Kumar Shivalingayya Malimath has looked after Channamma and provided her medical aid, and denied that Channamma executed a Will bequeathing her share vide Will dated 14.10.2016. The plaintiffs also examined Danayya
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Chinchimath as PW-2. He has reiterated the plaint averments in the examination-in-chief. During the course of cross- examination of PW-2, he admitted that Shivakumar and Lakshmi are the Children of Basalingayya. Defendant No.6 was examined as DW-1. He reiterated the plaint averments in the examination-in-chief. In the course cross-examination by the counsel for the plaintiff, he admitted that he is working in Agricultural University at Dharwad. His father four sons and three daughters. Out of them, elder son is Basalingayya who has expired. Basalingayya was married. Between him and Basalingayya, there was a difference of 12 years. Basalingayya married Girija. At that time, he was aged about 12 to 13 years and Basalingayya had no issues. He does not know that Basalingayya had performed a second marriage. He does not know that, Basalingayya had a 3rd wife by the name Nagavva, and Nagavva had a daughter who is plaintiff No.2. He does not know that, Basalingayya had a 4th wife by the name Shivagangavva, and Shivagnagavva had a son who is defendant No.11 and a daughter i.e., defendant No.12. He admits that, all the suit schedule properties are ancestral properties. Further, to prove the same, the defendants
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produced RTC extracts marked as Exs.D.1 to D.3.
Ex.D.4 is the extract of mutation register. 19. From the perusal of the evidence on record, it is clear that, Basalingayya married Channamma @ Girija and she was residing at her parents’ house, and had no issues. Plaintiff No.1 and defendant No.9 are the wives of Basalingayya and their names appear in the voters list marked as Ex.P.10 to P.12. It discloses the name of plaintiff No.1 as the wife of Basalingayya. Defendants 1 to 7 have denied the documents Ex.P.1 to P.12 and she is not a legally wedded wife of deceased Basalingayya. Admittedly, the suit properties are the ancestral joint family properties, and no partition is effected between the parties. 20. DW-1 in the course of cross-examination, admitted that, Basalingayya had four wives, they are defendant No.8, plaintiff No.1 and defendant No.10, respectively. Plaintiff No.1 is the wife of deceased Basalingayya and the properties are jointly standing in the name of defendants No.1 to 7. The suit schedule properties are the ancestral joint family properties of the plaintiffs and defendants. - 16 -
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21. The plaintiffs have proved that, plaintiff No.1 is the wife of deceased Basalingayya and plaintiff No.2 is the daughter of deceased Basalingayya from his 3rd wife, and defendants No.11 and 12 are the children of Basalingayya from his 4th wife. Basalingayya died leaving behind his wives, sons, and daughters. 22. In view of the above discussion, we answer points No.1 and 2, in the affirmative. Re. Point No.3:
23. Though, this appeal is filed by defendant No.4, defendant No.4 has not filed any independent written statement, nor filed a memo adopting the written statement filed by defendant No.2. Further, defendant No.4 has not contested the suit, and has not entered the witness box. The trial Court, considering the entire evidence on record was justified in partly decreeing the suit of the plaintiffs. Hence, we do not find any error in the impugned judgment. Accordingly, we answer point No.3 in the negative.
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Re. Point No.4
24. As we have already answered points No.1 to 3 in favour of the plaintiffs, accordingly we proceed to pass the following:
ORDER (i) The Appeal is dismissed. (ii) The Judgment and preliminary decree passedin O.S.No.548/2014 by the trial Court, is hereby confirmed.
No order as to the costs.
In view of the dismissal of the appeal, I.A.No.1/2020 does not survive for consideration. Accordingly, I.A.No.1/2020 is disposed of.
Sd/- (ASHOK S. KINAGI) JUDGE
Sd/- (UMESH M ADIGA) JUDGE
BVK CT: BSB