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2024 Supreme(Online)(KAR) 38273
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22ND DAY OF OCTOBER, 2024 BEFORE THE HON'BLE MRS JUSTICE K.S.HEMALEKHA REGULAR SECOND APPEAL NO. 100695 OF 2015 (PAR)
C/W REGULAR SECOND APPEAL NO. 100696 OF 2015 IN RSA 100695 OF 2015 BETWEEN:
SHRI RAMCHANDRA LAXMAPPA KAMANNAVAR AGE: 64 YEARS, OCC : AGRICULTURE, R/O : GODACHI, TQ : RAMDURGA, DIST : BELAGAVI-591123.
…APPELLANT (BY SRI R.K.KULKARNI, ADVOCATE)
AND:
1. SHRI. IRAPPA BASANAPPA JAMADAR AGE: 59 YEARS, OCC : AGRICULTURE, R/O : GODACHI, TQ : RAMDURGA, Digitally signed by DIST : BELAGAVI-591123.
VISHAL NINGAPPA PATTIHAL Location: HIGH COURT OF 2. SHRI DUNDAPPA MALLAPPA JAMADAR KARNATAKA DHARWAD BENCH AGE: 56 YEARS, OCC: AGRICULTURE, R/O : GODACHI, TQ : RAMDURGA, DIST : BELAGAVI-591123.
3. SHRI NAGAPPA MALLAPPA JAMADAR AGE: 51 YEARS, OCC: AGRICULTURE, R/O : GODACHI, TQ : RAMDURGA, DIST : BELAGAVI-591123.
4. SMT. TIPPAVVA W/O GOUDPPAGOUDA PATIL AGE: 61 YEARS, OCC : HOUSEHOLD WORK, R/O : GODACHI, TQ : RAMDURGA, DIST : BELAGAVI-591123.
5. SHRI MAHADEVAPPA NMBEPPA JAMADAR AGE: 74 YEARS, OCC: AGRICULTURE, R/O : GODACHI, TQ : RAMDURGA, DIST : BELAGAVI-591123.
6. SHRI NINGAPPA NIMBEPPA JAMADAR AGE: 64 YEARS, OCC: AGRICULTURE, R/O : GODACHI, TQ : RAMDURGA, DIST : BELAGAVI-591123.
7. SHRI VIRUPAKSHAPAP NIMBEPPA JAMADAR AGE: 58 YEARSM OCC: AGRICULTURE, R/O : GODACHI, TQ : RAMDURGA, DIST : BELAGAVI-591123.
…RESPONDENTS (BY KUM. RENUKA B. KADAM, ADVOCATE FOR SRI G.B.NAIK AND P.G.NAIK, ADVOCATES;
R1,R2,R3 ARE SERVED;
APPEAL STANDS ABATED AGAINST R4 TO R6)
THIS REGULAR SECOND APPEAL IS FILED U/S.100 OF CPC, PRAYING THAT THIS HONOURABLE COURT TO KINDLY CALL FOR THE RECORDS FROM THE COURTS BELOW AND ALLOW THIS APPEAL WITH COSTS BY SETTING ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.1056/2009 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSION JUDGE AT BELAGAVI PASSED ON 10.07.2015 AND THEREBY DISMISSING THE SUIT BY SETTING ASIDE THE JUDGMENT AND DECREE PASSED IN O.S.NO.21/2008 BY THE CIVIL JUDGE (SENIOR DIVISION) AT RAMDURG ON 03.11.2009 AND TO PARTLY DECREE THE SUIT OF THE RESPONDENTS, THEREBY GRANTING TO RELIEF OF SPECIFIC PERFORMANCE BY THE RESPONDENT NO.1 TO EXTENT OF HIS ¼TH SHARE IN THE SUIT PROPERTY.
IN RSA 100696 OF 2015 BETWEEN:
SHRI RAMCHANDRA LAXMAPPA KAMANNAVAR AGE: 64 YEARS, OCC : AGRICULTURE, R/O : GODACHI, TQ : RAMADURGA, DIST : BELAGAVI-591123.
…APPELLANT (BY SRI R.K. KULKARNI, ADVOCATE)
AND:
SHRI IRAPPA BASANAPPA JAMADAR AGE: 59 YEARS, OCC: AGRICULTURE, R/O : GODACHI, TQ : RAMADURGA, DIST : BELAGAVI-591123.
…RESPONDENT (RESPONDENT SERVED)
THIS REGULAR SECOND APPEAL IS FILED U/S.100 OF CPC, PRAYING THAT THE HONOURABLE COURT TO KINDLY CALL FOR THE RECORDS AND ALLOW THIS APPEAL WITH COSTS BY SETTING ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.1057/2009 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE AT BELAGAVI PASSED ON 10.07.2015 AND THEREBY DECREEING THE SUIT OF THE APPELLANT BY SETTING ASIDE THE JUDGMENT AND DECREE PASSED IN O.S.NO.114/2007 BY THE CIVIL JUDGE (SENIOR DIVISION), RAMDURG ON 03.11.2009 AND TO PARTLY DECREE THE SUIT OF THE RESPONDENTS, THEREBY GRANTING TO RELIEF OF SPECIFIC PERFORMANCE BY THE RESPONDENT TO EXENT OF HIS 1/4TH SHARE IN THE SUIT PROPERTY.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
ORAL JUDGMENT
Both the appeals are taken up together as they arise out of common judgment passed by the Courts below. RSA.No.100695/2015 is preferred by defendant No.5 assailing the judgment and decree passed in R.A.No.1056/2009 dated 10.07.2015 on the file of the III Addl. District Judge, Belagavi (hereinafter referred to as the ‘First Appellate Court’ for short) confirming the judgment and decree in O.S. No.21/2008 dated 03.11.2009 on the file of the Civil Judge (Sr.Dn.), Ramdurg (hereinafter referred to as the ‘trial Court’ for short), whereby, the suit seeking partition and separate possession came to be allowed holding that the plaintiffs together and defendant Nos.1 to 3 together are entitled each 5/16th share and defendant No.4 is entitled for 1/16th share in the property allotted to the share of the propositus - Irappa Nimbappa Jamdar.
2. RSA No.100696/2015 is preferred by the plaintiff assailing the judgment and decree in RA No.1057/2009 dated 10.07.2015 on the file of the III Additional District Judge, Belagavi (hereinafter referred to as ‘First Appellate Court’ for short) confirming the judgment and decree in OS No.114/2007 dated 03.11.2009 on the file of the Civil Judge (Senior Division) Ramdurg, (hereinafter referred to as ‘Trial Court’ for short), whereby, the suit of the plaintiff seeking specific performance came to be allowed in part directing the defendant to refund the earnest sale consideration amount of Rs.25,000/- with interest at the rate of 9% per annum from the date of filing of the suit till realization of the entire amount.
3. Parties herein are referred to as per their rank in OS No.114/2007 for the sake of convenience.
4. Brief facts of the case are that;
5. Suit in OS No.114/2007 is for relief of specific performance of contract based on the agreement of sale dated 21.07.2003 in respect of land Sy. No.389/1 measuring 4 acres 4 guntas situated in Godachi village Ramdurg taluk (hereinafter referred to as ‘suit property’). It is the case of the plaintiff that the defendant-Irappa Basanappa Jamdar entered into an agreement of sale with the plaintiff for sale consideration of Rs.2,00,000/- and a sum of Rs.25,000/- was received by the defendant as earnest money. It is the case of the plaintiff that in spite the plaintiff calling upon the defendant to come forward for execution of the sale deed, the defendant failed to execute the sale deed hence, the suit for specific performance of contract.
6. Suit in OS No.21/2008 is filed for relief of partition and separate possession against Irappa Basanappa Jamdar (defendant in OS No.114/2007) and others including the plaintiff in OS No.114/2007 contending that Irappa Nimbeppa Jamdar (defendant) is the original propositus, he has three sons and one daughter namely Basanappa, Nimbeppa, Mallappa and Tippavva, Nimbeppa is the father of the plaintiffs, Mallappa is the father of the defendant Nos.2 and 3. Defendant No.4 is the daughter of Irappa.
7. It is the case of the plaintiff in OS No.21/2008 that during the lifetime of the propositus – Irappa, Irappa and his sons on 25.01.1953 divided the suit property and 1 acre 1 gunta each was allotted to each son and 1 acre 1 gunta was retained by Irappa Jamdar for his maintenance. It is the case of the plaintiffs in OS No.21/2008 that after the death of the father of defendant No.1 namely Basanappa, mother of defendant No.1 Parvatevva gave application to enter her name and the name of her son defendant No.1 as the only legal heirs of Basanappa and accordingly their name was entered in the revenue records to entire 4 acers 4 guntas. It is the case of the plaintiffs in OS No.21/2008 that defendant No.1 is not the absolute owner of the suit land, and his right in the suit property is only to the extent of 1 acre 1 gunta allotted to his father in the partition and in order to defruad the plaintiffs in OS No.21/2008, defendant No.1 has entered into an alleged agreement of sale.
8. The trial Court based on the pleadings in both the sui
