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2025 DAILYLAW 6927 (KAR)

SRI. CHANDRASHEKHARGOUDA v. SMT. CHANNAWWA

RFA/100491/2019 · 2025-01-27

Ashok S Kinagi, Umesh M Adiga

Original Suitbody2025

Judgment text

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- 1 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF JANUARY 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100454 OF 2019 (PAR/POS) C/W REGULAR FIRST APPEAL NO. 100491 OF 2019 IN RFA NO.100454/2019 BETWEEN: SRI.CHANDRASHEKARGOUDA, A/F. BASANAGOUDA KOUJAGERI AGE: 77 YEARS, OCC: AGRICULTURE, R/O: PYATI SAL ONI, UNKAL, HUBBALLI-580031, DIST: DHARWAD. …APPELLANT (BY SRI. S.S. PATIL AND SRI. MAHANTESH R. PATIL, ADVOCATES) AND: 1. SMT. CHANNAWWA W/O. SIDDANAGOUDA KOUJAGERI AGE: 54 YEARS, OCC: HOUSEHOLD WORK, R/O: SIDDESHWAR NAGAR, UNKAL CROSS, HUBBALLI-580031, DHARWAD DISTRICT. 2. MAHESHWARI D/O. SIDDANAGOUDA KOUJAGERI AGE: 34 YEARS, OCC: HOUSEHOLD WORK, R/O: SIDDESHWAR NAGAR, UNKAL CROSS, HUBBALLI-580031, DHARWAD DISTRICT. 3. VISHWANATH S/O. SIDDANAGOUDA KOUJAGERI AGE: 32 YEARS, OCC: PRIVATE SERVICE, R/O: SIDDESHWAR NAGAR, Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 UNKAL CROSS, HUBBALLI-580031, DHARWAD DISTRICT. 4. MANJULA D/O. SIDDANAGOUDA KOUJAGERI AGE: 28 YEARS, OCC: HOUSEHOLD WORK, R/O: SIDDESHWAR NAGAR, UNKAL CROSS, HUBBALLI-580031, DHARWAD DISTRICT. …RESPONDENTS (BY SRI. G.S. KANNUR, SENIOR COUNSEL FOR SRI. MAHESH WODEYAR, ADVOCATE FOR R1 TO R4) THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD:01.08.2019 PASSED IN O.S.NO.181/2014 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. IN RFA NO. 100491/2019 BETWEEN: 1. SRI. CHANDRASHEKHARGOUDA s/o BASANAGOUDA KOUJAGERI AGE: 77 YEARS, OCC: AGRICULTURE, R/O: PYATISALI ONI, SAINAGAR ROAD, UNKAL, HUBBALLI-580031. DIST: DHARWAD. 2. SRI. BASANAGOUDA S/O. CHANDRASHEKHARGOUDA KOUJAGERI SINCE DECEASED 2(A) MEENAKSHI W/O BASANAGOUDA KOUJAGERI AGE: 47 YEARS, OCC: HOUSEHOLD WORK, R/O PYATISALI ONI, SAINAGAR ROAD, UNKAL, HUBBALLI, TQ: HUBBALLI DIST: DHARWAD-580031. 2(B) SAHANA D/O BASANAGOUDA KOUJAGERI AGE: 23 YEARS, OCC: STUDENT, R/O PYATISALI ONI, SAINAGAR ROAD, UNKAL, HUBBALLI, TQ: HUBBALLI, DIST: DHARWAD-580031. - 3 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 2(C) NAGANAGOUDA S/O BASANAGOUDA KOUJAGERI AGE: 22 YEARS, OCC: STUDENT, R/O PYATISALI ONI, SAINAGAR ROAD, UNKAL, HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD-580031. 3. SRI. MALLANAGOUDA S/O. CHANDRASHEKHARGOUDA KOUJAGERI AGE:45 YEARS, OCC: AGRICULTURE AND LIC AGENT, R/O: PYATISALI ONI, SAINAGAR ROAD, UNKAL, HUBBALLI-580031, DIST.:DHARWAD. 4. SRI. UMESHGOUDA S/O. CHANDRASHEKHARGOUDA KOUJAGERI AGE: 42 YEARS, OCC: AGRICULTURE AND SOCIAL WORK, R/O: PYATISALI ONI, SAINAGAR ROAD, UNKAL, HUBBALLI-580031, DIST.: DHARWAD. 5. SRI. PRABHUGOUDA S/O. CHANDRASHEKHARGOUDA KOUJAGERI AGE: 41 YEARS, OCC: AGRICULTURE AND BUSINESS, R/O: PYATISALI ONI, SAINAGAR ROAD, UNKAL, HUBBALLI-580031, DIST.: DHARWAD. …APPELLANTS (BY SRI. S.S.PATIL AND MAHANTESH R. PATIL, ADVOCATES) AND: 1. CHANNAWWA W/O. SIDDANAGOUDA KOUJAGERI AGE: 59 YEARS, OCC: HOUSEWIFE, R/O: SIDDESHWAR NAGAR, UNKAL CROSS, NEAR DANAMMA TEMPLE, HUBBALI-580031, DHARWAD DIST. 2. MAHESHWARI D/O. SIDDANAGOUDA KOUJAGERI AGE: 34 YEARS, OCC: HOUSEHOLD WORK, R/O: SIDDESHWAR NAGAR, UNKAL CROSS, NEAR DANAMMA TEMPLE, - 4 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 HUBBALI-580031, DHARWAD DIST. 3. VISHWANATH S/O. SIDDANAGOUDA KOUJAGERI AGE: 33 YEARS, OCC: SOFTWARE ENGINEER, R/O: SIDDESHWAR NAGAR, UNKAL CROSS, NEAR DANAMMA TEMPLE, HUBBALI-580031, DHARWAD DIST. 4. MANJULA D/O. SIDDANAGOUDA KOUJAGERI AGE: 29 YEARS, OCC: HOUSEWIFE, R/O: SIDDESHWAR NAGAR, UNKAL CROSS, NEAR DANAMMA TEMPLE, HUBBALI-580031, DHARWAD DIST. 5. PRAKASHGOUDA, S/O. CHANDRASHEKHARGOUDA KOUJAGERI AGE: 39 YEARS, OCC: AGRICULTURE AND BUSINESS, R/O: PYATISALI ONI, SAINAGAR ROAD, UNKAL, HUBBALI-580031 DHARWAD DIST. …RESPONDENTS (BY SRI. G.S.KANNUR, SENIOR COUNSEL FOR SRI. MAHESH WODEYAR, ADVOCATE FOR R-1 TO R-4) THIS RFA IS FILED UNDER SEC. 96 OF READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD 01.08.2019 PASSED IN O.S.NO.247/2018 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, DECREEING THE SUIT FILED FOR DECLARATION AND INJUNCTION. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 5 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) These two appeals are arising from the common judgment dated 01.08.2019 passed in O.S. No.181/2014 and O.S. No. 247/2018 by the learned II Additional Senior Civil Judge, Hubballi. 2. For convenience, the parties are referred to based on their ranking in O.S. No.181/2014. 3. The appellant was the plaintiff, and the respondents were the defendants. 4. Brief facts leading rise to the filing of these appeals are as follows : Plaintiff-Chandrashekar Gouda in O.S.No.181/2014 filed a suit against the defendants for partition and separate possession and the defendants in O.S. No.181/2014 filed a suit against the plaintiffs and the others defendants in O.S. No.247/2018 for the relief of injunction. - 6 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 In O.S No.181/2014, it is the case of the plaintiff that plaintiff and defendants are the members of Hindu undivided joint family. One Malleshgouda was the original propositus of the family of the plaintiff and the defendants, who died leaving behind his sons namely Goudappagouda and Basanagouda as surviving heirs. After the death of Malleshgouda, his sons Goudappagouda and Basanagouda succeeded to his estate. Goudappagouda and his first wife late Smt. Fakkiravva had two sons by name Hanumanthgouda and Chadndrashekargouda and 3 daughters namely Smt. Iravva, Smt. Somavva and Smt. Tayavva. Basanagouda son of Malleshgouda died issueless. After his demise, his wife Smt. Gadigevva adopted the second son of Goudappagouda by name Chandrashekargouda on 09.12.1940. After adoption, Smt. Gadigevva died leaving behind her adopted son i.e. Chandrashekargouda, who is the plaintiff, as her surviving heir. During the lifetime of Goduappagouda and Basanagouda, they were in joint possession and enjoyment of the suit schedule properties. After the - 7 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 demise of Goudappagouda and Basanagouda, no partition is effected by metes and bounds. The plaintiff being the head of the family was cultivating the suit agricultural lands till today. The plaintiff recently came to know that defendants No.1 to 4 created some revenue entries in respect of suit schedule properties without the knowledge of the plaintiff and got entered their names in the revenue records without including the name of the plaintiff and others heirs of Goudappagouda in respect of the suit properties. The plaintiff and the defendants are the members of Hindu undivided joint family and no partition is effected. The plaintiff requested the defendants to effect a partition, but the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 5. Defendant Nos.1 to 3 filed a written statement denying the averments made in the plaint and also denied the description of the suit schedule properties. It is - 8 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 contended that there was a prior partition effected between the parties and hence, again, the question of partition does not arise between the plaintiff and the defendants. It is stated that, there is no cause of action arose for the plaintiff to file a suit. Hence, prays to dismiss the suit. 6. Defendant Nos.1 to 4 in O.S. No.181/2014 filed a suit in O.S. No.247/2018 for declaration and injunction. It is contended that the suit properties were originally owned by one Siddangouda Koujageri who died leaving behind defendant Nos.1 to 4 as his successors. It is contended that defendant Nos.1 to 4 acquired the said properties as owners and they are in possession and enjoyment of the suit schedule properties. They got entered their names in the revenue records as owners and possessors. It is contended that the plaintiff in O.S. No.181/2014 has no right, title or interest over the suit properties. The defendants and their well wishers advised the plaintiff to stop the illegal attempts to dispossess them - 9 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 from the suit properties, but the plaintiff continued illegal interference. Hence, a cause of action arose for the defendants to file a suit for permanent injunction restraining the plaintiff from interfering with the peaceful possession and enjoyment of the suit properties. 7. The plaintiff in O.S. No.181/2014 filed a written statement denying the averments made in O.S. No.247/2018. It is contended that the plaintiff in O.S. No.181/2014 has filed a suit for partition and the said suit is pending for consideration. It is contended that the suit properties are the joint family properties of the plaintiff and the defendants. Hence, prays to dismiss the suit. 8. In view of the order passed in Miscellaneous No.51/2017 passed by the learned Principal District and Sessions Judge, Dharwad, O.S.No.365/2014 was transferred to the trial court and it was renumbered as O.S.No.247/2018 and it was clubbed with O.S. - 10 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 No.181/2014. Thereafter, the common trial was conducted by the trial Court. 9. The trial Court based on the pleadings of the parties, framed the issues and additional issues: ISSUES IN O.S. No. 181/2014: 1. Whether the plaintiff proves that he and the defendants are members of Hindu undivided joint family and further proves that the suit schedule properties are their joint family properties? 2. Whether the plaintiff proves ves that he is entitle for 1½ share in the suit schedule properties? 3. Whether the plaintiff is entitle for the relief as prayed in the suit? 4. What order or decree? ADDL.ISSUE IN O.S. No. 181/2014: 1. Whether the defendants proves that there has been a partition in the family as contended in para-5 of written statement? ISSUES IN O.S. No. 247/2018: 1. Whether the plaintiffs prove that they are absolute owners and in exclusive possession of the suit property? - 11 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 2. Whether the plaintiffs prove the interference by the defendants as alleged? 3. Whether the suit in the present form is maintainable? 4. Whether the plaintiffs are entitled to the reliefs as sought for? 5. What order or decree? 10. The plaintiff in O.S. No.181/2014 was examined as PW.1 and marked 15 documents as Ex.P-1 to P-15. In rebuttal, defendant No.2 was examined as DW.1 and marked 2 documents as Exs.D-1 and D-2. 11. The trial Court after recording the evidence, hearing on both sides, and on the assessment of the oral and documentary evidence, answered the issues and additional issues as under: In O.S. No.181/2014: Issues nos.1, 2, and 3 in the negative, additional issue No.1 in the affirmative and issue No.4 as per the final order. - 12 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 In O.S. No.247/2018 Issue Nos.1 to 4 in the affirmative, and issue No.5 as per the final order. 12. The suit of the plaintiff in O.S. No.181/2014 was dismissed. The suit of the plaintiffs in O.S. No.247/2018 was decreed and the defendants in O.S. No.247/2018 were restrained by way of perpetual injunction from interfering with the plaintiffs’ possession of the suit properties. 13. The plaintiff in O.S. No.181/2014 aggrieved by the common judgment passed in O.S. No.181/2014 and O.S. No.247/2018 filed these regular first appeals. 14. Heard the learned counsel appearing for the plaintiff and learned senior counsel for defendant Nos.1 to 4 in O.S. No.181/2014. 15. The learned counsel for the plaintiff submits that the trial Court has committed an error in passing the impugned judgment on the ground that the plaintiff has - 13 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 not cross-examined DW-1. He submits that no sufficient opportunity was granted to the plaintiff to cross-examine DW.1. He also submits that the plaintiff has filed an application i.e., I.A.29, to recall DW-1 and permit the plaintiff to cross-examine DW.1. The trial Court has rejected the said application on the date of pronouncement of the judgment. He submits that the impugned judgment passed by the trial Court is in violation of principles of natural justice. Hence, on these grounds, he prays to allow the appeals by setting aside the impugned common judgment, and remit the matter to the trial Court to provide an opportunity for the plaintiff to cross-examine DW.1 and thereafter pass an appropriate judgment in accordance with law. 16. Per contra, learned senior counsel for defendant Nos.1 to 4 submits that the trial Court has provided sufficient opportunities to the plaintiff to cross-examine DW.1. He submits that the plaintiff has not availed sufficient opportunity granted to him. He further submits - 14 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 that the impugned judgment passed by the trial Court is just and proper and does not call for interference. Hence, on these grounds, he prays to dismiss the appeals. 17. Perused the records and considered the submissions of the learned counsel for the parties. 18. The points that arise for our consideration are: a. Whether the trial Court granted sufficient opportunity to the plaintiff to cross- examine DW.1.? b. Whether the impugned order passed by the trial Court is in violation of the principles of natural justice? and c. What order? 19. Points No.(a) and (b) are taken together since they are interconnected with each other and to avoid repetition of facts. - 15 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 20. The plaintiff in O.S. No.181/2014 filed a suit for partition and separate possession. The plaintiff contends that the plaintiff and the defendants are the members of a Hindu undivided joint family and no partition is effected between the plaintiff and the defendants. 21. Per contra, defendant Nos.1 to 4 contended that there was a prior partition and the suit schedule properties had fallen to the share of defendant Nos.1 to 4 in O.S. No.181/2014 and based on the oral partition, the names of the respective parties i.e., defendant Nos.1 to 4 were entered in the revenue records. The plaintiff was examined as PW.1 and he was cross-examined. The plaintiff has closed his side and the matter was listed for the evidence of the defendants. The defendants have taken 17 adjournments to lead evidence and all of a sudden, they have filed affidavit in the form of examination-in-chief. The trial Court, without providing sufficient opportunity to the plaintiff to cross-examine DW- 1, has taken the cross-examination of DW-1 as Nil and - 16 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 posted the matter for arguments. The plaintiff filed an application in I.A.29 to recall DW-1 for the purpose of cross-examination. The said application was rejected vide order dated 30.07.2019 on the ground that the suit is reserved for pronouncement of judgment. Hence, the trial Court did not pronounce the judgment on 30.07.2019 for want of time and adjourned the matter to 01.08.2019. The plaintiff filed an application to advance the date of hearing on 31.07.2019. The case was advanced, and the plaintiff filed an application in I.A.30 for stay the matter for one month. The said I.A.30 was rejected and the judgment was pronounced on 01.08.2019. 22. From the perusal of the order sheet of the trial Court, it discloses that sufficient opportunity was not provided to the plaintiff to cross-examine DW.1. 23. Without going into the merits of the case, only on the ground that no sufficient opportunity was provided to the plaintiff to cross-examine DW.1, the impugned common judgment is liable to be set aside. - 17 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 24. In view of the above discussion, we answer point Nos.(a) in the negative and point No.(b) in the affirmative. 25. Point No.(c): As we have already answered point Nos.(a) and (b), we proceed to pass the following: ORDER The appeals are allowed. The impugned common judgment is set aside. The suits are restored. I.A.29 is allowed. The plaintiff is permitted to cross-examine DW.1. Both parties are permitted to lead further evidence if any. The trial Court is directed to pass appropriate judgment in accordance with law after hearing the parties. The parties are directed to appear before the trial Court on 03.03.2025 without awaiting any further notice. As one of the suits is of the year 2014, the trial Court is directed to dispose of the suits within an outer limit of one year from the date of appearance of the parties. - 18 - NC: 2025:KHC-D:1590-DB RFA No. 100454 of 2019 C/W RFA No. 100491 of 2019 All the contentions of the parties are kept open. This Court has not made any adjudication on the merits in issue. The parties are directed to cooperate with the trial Court for early disposal. [[ Office is directed to return the trial court records. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE KMV LIST NO.: 1 SL NO.: 51