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2025 Supreme(Online)(KAR) 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
MR. JUSTICE SACHIN SHANKAR MAGADUM, MR. JUSTICE G BASAVARAJA, JJ
Malgodua Budyappa Naik @ Patil – Appellant
Versus
Iravva Siddappa Naik – Respondent
REGULAR FIRST APPEAL NO. 100281 OF 2020 (PAR/POS)
Advocate Appeared:
For the Appellant :SRI. MAHESH WODEYAR, ADVOCATE
For the Respondent:SRI. A.B. KONI, ADVOCATE FOR C/R1(A) AND 1(B); NOTICE TO R2 AND R3 ARE SERVED
The appellate court ruled that a prior settlement barred the plaintiff's suit under Order XXIII Rule 3-A, emphasizing the burden of proof lies with the party making allegations.
Headnote:(A) Code of Civil Procedure, 1908 - Order XXIII Rule 3 and 3-A - Partition suit - Plaintiff claimed a share in joint family property, asserting prior abandonment of rights was invalid - Trial Court granted share, but findings were reversed on appeal - Court found that the plaintiff failed to prove fraud or misrepresentation regarding a previous settlement, and the suit was barred by Order XXIII Rule 3-A. (Paras 5, 14, 22)
(B) Burden of Proof - The burden of proof lies with the party making allegations, and failure to testify can lead to adverse inferences. (Paras 12, 19)
(C) Jurisdiction - The trial Court lacked jurisdiction to examine the validity of the earlier suit's proceedings. (Paras 10, 17)
Facts of the case:
The plaintiff, a daughter from a second marriage, sought a share in property, claiming her rights were denied by the defendants, who argued she had previously settled her claims.
Findings of Court:
The appellate court found the trial Court's judgment erroneous, emphasizing the validity of the prior settlement and the plaintiff's failure to substantiate her claims.
Issues: The main issues were whether the trial Court's findings were erroneous and whether it had jurisdiction to examine the earlier suit's validity.
Ratio Decidendi: The appellate court ruled that the trial Court erred in ignoring the statutory bar under Order XXIII Rule 3-A and improperly placed the burden of proof on the defendants.
Result: The appeal is allowed, and the suit is dismissed.
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
The captioned appeal is by the defendants assailing the preliminary judgment and decree dated 24.02.2020 drawn in O.S. No.65/2016 on the file of the Principal Senior Civil Judge, Gokak [for brevity, ‘the trial Court’] granting 1/6th share to the plaintiff.
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. The family tree is as under:
4. The plaintiff who is daughter born through second wife Smt. Gouravva instituted a suit in O.S. No.55/2016 contending that she constitutes undivided joint Hindu family along with defendants and she has got legitimate share in the property. Plaintiff alleges that the propositus Sri. Lakkappa had one son by name Sri. Hanumantappa. The said Sri. Hanumantappa during his life time married Smt. Uddavva and in the said wedlock, they were blessed with one daughter by name Smt. Gangavva. Smt. Gangavva had a son by name Sri. Buddeppa. The present defendants are the legal heirs of said Sri. Buddeppa. The plaintiff further claims that Sri. Hanumantappa married one Smt. Gouravva and the plaintiff is born in the said wedlock. The present suit is filed by the plaintiff alleging that defendant Nos.1 and 2 have illegally got their names mutated to all the suit schedule properties without notifying the plaintiff and the plaintiff when questioned the defendants, the defendants contended that their father Sri. Buddeppa is adopted by propositus Sri. Hanumantappa and therefore, plaintiff has no right in the suit schedule properties. The present suit is filed alleging that defendant Nos.1 and 2 have denied the plaintiff’s share in the suit schedule properties and therefore, present suit for partition and separate possession came to be filed.
5. Upon receiving the summons, the defendants entered an appearance and submitted a written statement. They contested the suit, asserting that it was not maintainable as the plaintiff had previously abandoned her rights in the suit schedule properties in O.S. No. 113/2003. They further argued that the suit was barred by limitation and sought its dismissal. The Trial Court framed issues, placing the burden of proof on the defendants. To substantiate their claims, the defendants presented oral and documentary evidence, producing a total of 48 documents. However, the plaintiff did not testify. In the absence of rebuttal evidence, the Trial Court held that defendant Nos.1 to 6 failed to establish that the plaintiff had transferred her rights in the suit schedule properties to their father, Sri Buddeppa. While answering issue No.2 in the negative, the Court also found that the defendants could not prove the existence of a compromise recorded in O.S. No.113/2003, thereby rejecting their claim that the present suit was not maintainable. In addressing issue Nos.1 and 2, the Trial Court effectively scrutinized the validity of the alleged compromise in O.S. No.113/2003. Upon examining the original memo marked as Ex.D-45 and its certified copy marked as Ex.D-14, the Court concluded that Ex.D-14 was a fabricated document. Furthermore, it determined that the plaintiff, Iravva’s, LTM [Left Thumb Impression] was identified by the counsel who submitted the memo filed as Ex.D-14. However, referring to the order sheet at Ex.D-12 in O.S. No.113/2003, the Court noted that the LTM was not officially recorded in the order sheet. Criticizing the manner in which the Presiding Officer had dismissed the previous suit as "not pressed," the Trial Court ultimately decreed the present suit, granting the plaintiff a 1/6th share in item Nos.1 to 7 of the suit schedule properties.
Heard the learned counsel for the defendants and the learned counsel appearing for the plaintiff. The points that would arise for consideration in this appeal are:
i. Whether the finding of the trial Court that defendant Nos.1 to 6 have failed to prove the settlement arrived at between the original plaintiff –
