Extracted from the PDF above. The PDF is authoritative.
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NC: 2025:KHC-D:1233-DB RFA No. 100276 of 2017 C/W RFA No. 100165 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22ND 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. 100276 OF 2017 (PAR/POS) C/W REGULAR FIRST APPEAL NO. 100165 OF 2021
IN RFA NO.100276/2017
BETWEEN:
1. SMT. SHANKREVVA W/O. DODDAPPA JABI, SINCE DECEASED APPELLANT NO. 2A TO 2D AND APPELLANTS NO. 3, 4 AND RESPONDENTS 1 TO 3 ARE LEGAL REPRESENTATIVES OF DECEASED APPELLANT NO.1. 2. SMT. LAXMI W/O. DEVENDRAPPA TALAVAI, SINCE DECEASED REPRESENTED BY HER LRS. 2A. DEVENDRAPPA S/O. BHARAMAPPA TALAVAI AGED 67 YEARS, OCC: AGRICULTURE, R/O: HEBBALLI, TQ: DHARWAD, DIST: DHARWAD-580112. 2B. BASAVARAJ S/O. DEVENDRAPPA TALAVAI, AGED 37 YEARS, OCC: AGRICULTURE, R/O: HEBBALLI, TQ: DHARWAD,
Digitally signed by BHARATHI H M Location: HIGH COURT OF KARNATAKA Date: 2025.02.05 12:24:09 +0530
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DIST: DHARWAD-580112. 2C. JAYASHREE KOM UMESH SHIRKOL, AGED 35 YEARS, OCC: HOUSEHOLD, R/O: AMMINABHAVI, TQ AND DIST: DHARWAD-580201. 2D. MALLIKARJUN S/O. DEVENDRAPPA TALAVAI, AGED 33 YEARS, OCC: AGRICULTURE, R/O: HEBBALLI, TQ: DHARWAD, DIST: DHARWAD-580112. AMENDMENT CARRIED OUT AS PER COURT ORDER DATED: 11.03.2022. 3. SMT. LALITA W/O. RAGHUNATHGOUDA PATIL, AGED 48 YEARS, OCC: HOUSEHOLD, R/O: ARALIKATTI, TQ: HUBBALLI, DIST: DHARWAD 581207. 4. SMT. BHARATI @ CHANNAMMA W/O. CHANDRAGOUDA HONNAPPAGOUDAR, AGED 42 YEARS, OCC: HOUSEHOLD, R/O: KOTAGUND, HUNASI TQ: HUBBALLI, DIST: DHARWAD 577583. …APPELLANTS
(BY SRI. VISHWANATH HEGDE, ADVOCATE)
AND:
1. SRI. VEERABHADRAPPA DODDAPPA JABI AGED 54 YEARS, OCC: PRIVATE SERVICE R/O: SUBHASH NAGAR, SHIVAKKANAVAR BUILDING, KESHWAPUR, HUBBALLI, DIST: DHARWAD 580023. 2. SMT. NEELAVVA W/O. SANGAPPA KITTUR, AGED 57 YEARS, OCC: HOUSEHOLD, R/O: BEHIND HARIMANDIR,
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GABBURGALLI, AKKIHONDA, HUBBALLI DIST: DHARWAD 580028. 3. SMT. SUMANGALA W/O. BASAVARAJ SHIVABASANNAVAR AGED 38 YEARS, OCC: HOUSEHOLD, R/O: KIRESUR TQ: HUBBALLI, DIST: DHARWAD 581209. …RESPONDENTS
(BY SRI. S.K. HEGDE, ADVOCATE FOR R1;
NOTICE TO R2 AND R3 SERVED)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:24.6.2017 PASSED IN O.S.NO.350/2011 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, DISMISING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. IN RFA NO.100165/2021 BETWEEN:
SMT. SUMANGALA W/O. BASAVARAJ SHIVABASANNAVAR AGE. 40 YEARS, OCCN.
HOUSEHOLD, R/O. KIRESUR, TAL. HUBLI. …APPELLANT
(BY SRI. V.V. JOGALEKAR AND SRI. SANTOSH BIRANGI, ADVOCATES)
AND:
1. SMT. SHANKAREVVA W/O. DODDAPPA JABI AGE. 75 YEARS, OCCN. HOUSEHOLD, R/O. KILLA KASUGAL, TAL. HUBLI. 2. SMT. LAXMI W/O. DEVENDRAPPA TALAVAI AGE. 48 YEARS, OCCN. HOUSEHOLD, R/O. HEBBALLI, TAL. HUBLI. - 4 -
NC: 2025:KHC-D:1233-DB RFA No. 100276 of 2017 C/W RFA No. 100165 of 2021
3. SMT. LALITA W/O. RAGHUNATHAGOUDA PATIL AGE. 43 YEARS, OCCN. HOUSEHOLD, R/O. ARALIKATTI, TAL. HUBLI. 4. SMT. BHARATI @ CHANNAMMA W/O. CHANDRAGOUDA HONNAPPAGOUDAR AGE. 38 YERS, OCCN. HOUSEHOLD, R/O. HUNASI, TAL. HUBLI. 5. VEERABHADRAPPA S/O. DODDAPPA JABI AGE. 52 YEARS, OCCN. PVT SERVICE, R/O. SUBHASANAGAR, SAVAKKANAVAR BUILDING, KESHWAPUR, HUBLI. 6. SMT. NEELAVVA W/O. SANGAPPA KITTUR AGE. 55 YEARS, OCCN. HOUSEHOLD, R/O. BEHIND HIREMANDIR, GABBUR GALLI, AKKIHONDA HUBLI. …RESPONDENTS
(BY SRI. M.S. BANDI, ADVOCATE FOR R2;
R1, R3 TO R5 ARE DISMISSED;
NOTICE TO R6 SERVED)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED:24.6.2017 PASSED IN O.S.NO.350/2011 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, AND SUIT OF THE APPELLANT TO THE EXTENT OF HER SHARE BE DECREED AS PRAYED FOR IN THE INTEREST OF JUSTICE AND EQUITY. THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA
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ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)
Both these appeals arise out of the judgment and decree dated 24.06.2017 passed by the I Addl. Senior Civil Judge, Hubballi in OS No.350/2011. The plaintiff No.5 filed RFA No.100165/2021 and plaintiffs No.1 to 4 have filed RFA No.100276/2017. Since both these appeals arise out of the common judgment and decree, both the appeals are taken up together for disposal.
2. For convenience, the parties are referred to, as per their ranking before the trial Court. The appellants were the plaintiffs and respondents were the defendants.
3.
Brief facts of the case of both the parties before the trial court are as under: Plaintiffs No.1 to 5 have contended that the suit property is ancestral and joint family property belonging to plaintiffs and defendants No.1 and 2. Originally, suit property was held by Doddappa Jabi who was the husband of plaintiff No.1 and father of the plaintiffs No.2 to 5 and
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the defendants No.1 and 2. After death of Doddappa, plaintiffs and defendants have inherited the said property. Each one of them are entitled for 1/7th share in the suit schedule property. There is no partition effected between them in respect of suit property. Plaintiffs No.2 to 5 are residing in their respective husband’s houses; taking undue advantage of the same, by misleading plaintiffs and defendant No.2, defendant No.1 got his name entered in the revenue records of the said property. On the basis of the said entry, he is intending to alienate the suit property. Coming to know these facts, plaintiffs demanded for a partition and separate possession of their share in the suit properties. Defendant No.1 refused to effect partition. Hence, a cause of action arose for the plaintiffs to file a suit for the relief of partition and separate possession.
4. Defendant No.1 filed a written statement. The
contentions of defendant No.1 are that the suit schedule property was a joint family property. Plaintiffs and
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defendant No.2 had relinquished their right over the suit property by executing relinquishment deeds. Therefore, plaintiffs and defendant No.2 are not entitled to any share in the suit schedule property. The suit is filed just to harass the defendant No.1. With these reasons, prayed to dismiss the suit.
5. From the rival contentions of the parties, the trial Court framed the following issues:- Issues
1. Whether plaintiffs prove that they are in joint possession and enjoyment of suit property as contended?
2. Whether the defendant No.1 proves that the plaintiffs and defendant No.2 executed relinquishment deed in his favour and hence, he is the absolute owner in possession and enjoyment of suit property?
3. Whether the plaintiffs are entitled to any share in the suit property aid if so, what is their share?
4. Whether the plaintiffs are entitled to the relief prayed for in this suit?
5. What order or decree?
6. Plaintiffs to prove their case, plaintiff No.5 was examined as PW1 and got marked one document as
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exhibit P1. Defendant No.1 examined two witnesses as DW1 and DW2 and got marked 3 documents as exhibit D1 to D3. After hearing both the parties and appreciating pleading and evidence on record, the trial Court by impugned judgment dismissed the suit. Same is challenged in the present appeals on the grounds mentioned in the appeal memos’ is filed by plaintiffs No.1 to 4 and plaintiff No.5.
7. We have heard the arguments of learned advocates for plaintiffs and defendant No.1.
8.
Learned counsel for the plaintiffs would submit that the suit is for partition and separate possession of shares of the plaintiffs. Undisputedly, suit schedule property is the ancestral joint family property. It was belonging to the propositus of the family by name Doddappa. After his death, plaintiffs and defendants succeeded to the suit property. Plaintiffs are residing in their respective husband’s houses. Taking undue advantage of the absence of the plaintiffs No.2 to 5 and
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defendant No.2, defendant No.1 got his name entered in the revenue record. Earlier, he used to share the crops between plaintiffs and defendants. Prior to filing of the suit, he left to share the yields of the lands and hence plaintiffs demand for partition and separate possession. Defendant No.1 refused to effect the partition. Therefore, they filed this suit.
9. Plaintiffs No.1 to 4 further contended that they reposed confidence on plaintiff No.5 who was acquainted with the facts of the case, to prosecute the suit on their behalf. To their shock and surprise, plaintiff No.5 colluded with defendant No.1 and during her cross examination, she has completely supported the case of defendant No.1 and agreed to the suggestions of defendant No.1. She deliberately gave the evidence in favour of defendant No.1 only with an intention to help him. The said fact came to the knowledge of plaintiffs No.1 to 4. They filed applications in IA No.19 to 22 before the trial Court under
Order I Rule 10(2) of CPC praying to transpose them as
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defendant No.3 to 6, since, there was conflict of interest between the plaintiffs No.1 to 4 and plaintiff No.5 in respect of the suit property. The learned trial judge rejected the said applications. Thereafter, plaintiffs filed IA No.23 to 25 before the trial Court for re-opening of the case of the plaintiffs and permitting the plaintiffs No.1 to 4 to lead their evidence and also to cross examine DW1 and DW2. The trial Court rejected the said applications without justifiable reasons and solely on technical grounds. In view of these reasons, the trial court did not give proper opportunities he plaintiffs No.1 to 4 to lead their evidence as well as cross examine DW1 and DW2. Right over immovable properties is involved in the suit. The trial Court without affording proper opportunities to the plaintiffs No.1 to 4, hurriedly disposed of the matter, which caused irreparable loss and damage to the rights of the plaintiffs. Therefore, prayed to consider the applications in IA Nos.19 to 25 and set aside the impugned
judgment and remand the matter to the trial court so that the plaintiffs No.1 to 4 can lead their evidence and also
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cross examine DW1 and DW2, thereafter, suit can be
disposed of on merits. 10. The learned counsel for the respondent No.1 contends that, plaintiffs No.1 to 4 voluntarily let the plaintiff No.5 to give evidence on their behalf also. In her examination-in-chief, she has reiterated the plaint averments. During the cross examination, relinquishment deeds executed by plaintiffs were confronted to her and she admitted the said documents and she has also admitted that, they have taken their share in the property and given up their right in favour of defendant No.1. In the documents placed on record, she cannot take any other defence than admitting the same. The said documents are placed on record. Merely she save evidence in support of the contentions of defendant No.1 does not mean that she has colluded with defendant No.1 and gave evidence in his favours. On that ground her evidence cannot be discarded. He further submitted that the evidence given by PW.1 is already on record and
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admission given by her cannot be withdrawn or diluted by the further evidence of the plaintiffs. The learned trial Judge considering the contentions of the plaintiffs has rightly rejected IA Nos.19 to 25. The suit was filed during the year 2011 and it was decided during the year 2017. The matter was pending before the trial court for nearly about six years. Therefore, contentions of the plaintiffs that the trial Court hurriedly disposed of the matter is not true. He further submitted that on technical ground if the trial court judgment is set aside and remanded to the trial court permitting plaintiffs No.1 to 4 to lead further evidence and cross examine DW1 and DW2 then it amounts to denova trial. Only to harass defendant No.1 and to grab the property belonging to him, plaintiffs have filed this appeal. Hence, prayed to dismiss the appeal and in the alternative submits that if this Court is pleased to remand the matter for recording of the further evidence then heavy cost be imposed towards litigation expenses to the defendant No.1. He shall not suffer due to the inaction
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of the plaintiff Nos.1 to 4. Considering these facts, suitable orders be passed. 11.
Following points emerges for our determination: 1) Whether the trial Judge erred in holding that plaintiff Nos.1 to 5 have executed relinquishment deed and given up their right over the suit property? 2) Whether the trial Court has not given proper opportunity to the plaintiff Nos.1 to 4 to lead their evidence and cross examine DW1 and DW2? And rejection of IA Nos.19 to 25 on technical grounds is tenable? 3) What order? 12. Point Nos. 1 and 2: Point Nos.1 and 2 are interlinked, hence they are taken up together for common
discussion in order to avoid repetition of facts. 13. Relationship between the parties is not in dispute. Property was belonging to the husband of plaintiff No.1 and father of the plaintiff Nos.2 to 5 and defendant No.1 by name Doddappa is also not in dispute. Plaintiff No.1 died during the pendency of this appeal. It is also not disputed by defendants that said Doddappa succeeded suit
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property from his ancestors. The contentions of the defendant No.1 is that, after the death of Doddappa, plaintiffs and defendant No.2 have relinquished their right over the suit property in favour of defendant No.1 by executing the documents and therefore, they are not entitled for any share. 14. It appears on behalf of plaintiff Nos.1 to 5, plaintiff No.5 was examined as PW.1 In her cross examination, more or less she accepted the suggestions of the defendants. It is the main grievance of the plaintiffs that during the course of the trial, she colluded with defendant No.1 and completely admitted the contentions of the defendant No.1, with an intention to cause loss to the plaintiffs. Therefore, they want to examine themselves as witness before the trial Court so that they can put forth real facts before the Court. 15. Defendant No.1 examined himself as DW1 and he examined one witness as DW2. Evidence of the plaintiffs was closed on 08.12.2016 and the matter was
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posted for defendants’ evidence. On 03.01.2017, defendant No.1 was examined as DW1 and at the request of the plaintiffs, time was granted on cost and the matter was adjourned to 07.01.2017. It appears that on that day evidence of DW1 was closed. Prayer of plaintiffs to cross examine him was rejected. Case was adjourned to 19.01.2017, for evidence of witness of defendant. On that day DW2 was examined and on request of PW1, time was granted to cross examine and case was adjourned to
23.01.2017. On 23.01.2017, it was ordered that “DW2 present. Sri. BMJ Advocate for plaintiffs and plaintiffs are absent and hence it was ordered as ‘no cross examination’ of DW.2 by the plaintiffs and the evidence of defendants was closed.” And heard arguments of Sri.KSJ, advocate for defendant.
Advocate for plaintiffs prays for time.” The matter was posted for arguments of plaintiffs by 27.01.2017.” Thereafter, as stated above, IA Nos.19 to 22 to transpose plaintiffs No.1 to 4 as defendant Nos.3 to 6 were filed and they were rejected by order dated
23.07.2017. Thereafter, plaintiffs filed IA Nos.23 to 25
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seeking permission to lead their evidence and cross examine DW1 and DW2. Those applications were also rejected by order dated 15.06.2017. On going through the
order sheet, it reveals that the trial Court has not given proper opportunity to the plaintiffs to lead further evidence of plaintiff Nos.1 to 4 and cross examine DW1 and DW2.
16. As rightly submitted by the learned counsel for the plaintiffs, right over immovable properties are involved in the present case. Therefore, on technical grounds, if their right is denied, it would cause injustice to them and it would seriously affect their right over an immovable properties. Therefore, to meet the ends of justice and decide the matter on merits, it is just and necessary to allow the IA Nos.23 to 25 and permit the plaintiff Nos.1 to 4 to lead further evidence if any, on their behalf and cross examine DW1 and DW2, so that the trial Court can decide the matter on merits. If plaintiffs are given the liberty to lead their evidence that does not mean that rights of the defendants would affect and whatever evidence/admission
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given by the plaintiff No.5(PW1) would be withdrawn. If any admissions are given by PW.1 in favour of the defendants, that will not be taken away by leading additional evidence of plaintiff Nos.1 to 4. Therefore, no prejudice or loss will be caused to the defendant No.1. Defendant No.1 will get an opportunity to cross examine the witnesses, if any, examined by the plaintiff Nos.1 to 4. Admittedly, DW1 and DW2 were not cross examined by the plaintiffs. If an opportunity is given to the plaintiffs to cross examine them, the trial Court can appreciate their evidence properly and decide the suit on merits.
17. It is true that the suit was of the year 2011 and it was decided during June-2017. Thereafter, this appeal was filed and it has been pending for last 8 years. This litigation is pending for about 15 years. If the impugned
judgment is set aside and the matter is remanded to the trial Court to the stage of further evidence of plaintiffs, then it will cause delay in disposal of the case and the defendant No.1 has to bear additional litigation expenses.
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That could be compensated by awarding the costs to him. Considering the facts and circumstances of the case and looking to the delay that will be caused due to inaction of the plaintiffs Nos.1 to 4 in not prosecuting the case effectively before the trial Court, heavy costs need to be imposed. Since, the matter is to be remanded to the trial Court for re-trial, we are not intending to discuss on point No.1, which pertains to merit of the case.
18. Plaintiff No.5 filed RFA No.100165/2021 challenging the impugned judgment passed by the trial Court. Since, impugned judgment and decree is to be set aside and parties have to be relegated to trial Court for further trial, she is also permitted to raise her contention if any, before the trial Court. Hence said appeal is also to be allowed.
19. For the above said discussions, we answer point No.2 in the affirmative, point No.1 does not survive for
consideration and we proceed to pass the following:
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ORDER
1) Both the appeals are allowed.
2) Judgment and decree passed in OS No.350/2011 dated 24.06.2011 on the file of the I Addl. Senior Civil Judge, Hubballi is set aside subject to payment of cost of Rs.3,00,000/- payable by the plaintiffs to the defendant No.1 on the date of appearance of the parties before the trial Court.
Orders passed on IA Nos.23 to 25 dated 15.06.2017 are set aside and the said applications are allowed by permitting the plaintiff Nos.1 to 4 to lead their further evidence and also cross examine DW1 and DW2.
The suit is restored.
The parties are directed to appear before the trial Court on 03.03.2025 without waiting for notice from said Court.
3) This Court has not made any adjudication of the matter on merits and all the contentions of the parties are kept open to be urged before the trial Court.
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4) Plaintiffs are permitted to lead further evidence. In case, the plaintiffs lead any further evidence, the defendants are at liberty to lead rebuttal evidence, if any, on their behalf.
5) Registry is directed to return the trial Court records along with copy of this order forthwith.
Sd/- (ASHOK S. KINAGI) JUDGE
Sd/- (UMESH M ADIGA) JUDGE
HMB LIST NO.: 1 SL NO.: 51