Back
2023 Supreme(Online)(KAR) 12440
- 1 -
RFA No. 100242 of 2016
C/W RFA No. 100243 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF MAY, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO. 100242 OF 2016 (DEC/PAR-)
C/W
REGULAR FIRST APPEAL NO. 100243 OF 2016
IN RFA No.100242/2016
BETWEEN:
RENUKA W/O. NATOGI PATANGE
AGE. ABOUT 53 YEARS, OCC. HOUSEHOLD WORK,
R/O. AT POST: SOMAVAR PETH,
KITTUR, TQ. BELAGAVI-580019.
…APPELLANT
(BY SRI M.R. MULLA, ADVOCATE)
AND:
1.
SRI GANESHWAR S/O.. RAMACHANDRA BINGEKAR,
AGAE ABOUT 62 YEARS, OCC NIL,
R/O. HIRE PETH, BEHIND JAVALI SAAL,
HUBBALLI-580028.
2.
SMT JAYASHREE W/O. SRINIVAS BINGEKAR
AGE. ABOUT 47 YEARS, OCC. HOUSEHOLD WORK,
R/O. CHABBI PLOT, NEAR DATTATRAYA TEMPLE,
NEKAR NAGAR, OLD HUBBALLI, HUBBALLI-580028.
3.
VIJAY S/O. SRINIVAS BINGEKAR
AGE. ABOUT 30 YEARS, OCC. COOLIE,
R/O. CHABBI PLOT, NEAR DATTATREYA TEMPLE,
NEKAR NAGAR, OLD HUBBALLI, HUBBALLI-580028.
POOJA
DEELIP
SAVANUR
Digitally signed by
POOJA DEELIP
SAVANUR
Location: HIGHCOURT
OF KARNATAKA-
DHARWAD BENCH
Date: 2023.06.14
12:55:25 +0530
- 2 -
RFA No. 100242 of 2016
C/W RFA No. 100243 of 2016
4.
VINOD S/O. SRINIVAS BINGEKAR
AGE. ABOUT 27 YEARS, OCC. COOLIE,
R/O. CHABBI PLOT,
NEAR DATTATREYA TEMPLE, NEKAR NAGAR,
OLD HUBBALLI, HUBBALLI-580028.
5.
DEEPA D/O. SRINIVAS BINGEKAR
AGE. ABOUT 25 YEARS, OCC. COOLIE,
R/O. CHABBI PLOT,NEAR DATTATREYA TEMPLE,
NEKAR NAGAR, OLD HUBBALLI, HUBBALLI-580028.
6.
SRI VIJAY S/O. CHANDRASHEKHAR ALAGUNDAGI
AGE. ABOUT 35 YEARS, OCC. BUSINESS,
R/O. ALAGUNDAGI ONI,
BEHIND JAVALI SAAL, HUBBALLI.
…RESPONDENTS
(BY SRI S. A. SANDUR AND SRI K. L. PATIL, ADVOCATES FOR
RESPONDENT NO.1; SRI SATISH M. KARAD ADVOCATE FOR
RESPONDENT NO.6; RESPONDENT NO. 2 TO 5 SERVED
UNREPRESENTED)
---
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96
OF C.P.C PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 27.06.2016 IN O.S. NO. 209/2012 PAASED BY THE
LEARNED
PRINCIPAL
SENIOR
CIVIL
JUDGE
AND
JMFC,
HUBBALLI,
BY
DISMISSING
THE
SUIT
WITH
COST
THROUGHOUT, IN THE INTEREST OF JUSTICE AND EQUITY.
IN RFA No.100243/2016
BETWEEN:
SRIVIJAY S/O. CHANDRASHEKHAR ALAGUNDAGI
AGE: 35 YEARS, OCC: BUSINESS,
R/O. ALAGUNDAGI ONI,
BEHIND JAVALI SAL, HUBBALLI
…APPELLANT
(BY SRI SUNITHA P. KALASOOR, ADVOCATE)
- 3 -
RFA No. 100242 of 2016
C/W RFA No. 100243 of 2016
AND:
1.
SRI GANESHWAR S/O. RAMACHANDRA BINGEKAR
AGE 62 YEARS, OCC. NIL,
R/O. HIREPETH, BEHIND JAVALI SAL, HUBBALLI-580020.
2.
SMTJAYASHREE W/O. SRINIVAS BINGEKAR
AGE:47 YEARS, OCC: HOUSEHOLD WORK,
R/O. CHABBI PLOT, NEAR DATTATRAYA TEMPLE,
NEKAR NAGAR, OLD-HUBBALLI, HUBBALLI-580020.
3.
VIJAY S/O. SRINIVAS BINGEKAR
AGE:30 YEARS, OCC: COOLIE,
R/O. CHABBI PLOT, NEAR DATTATRAYA TEMPLE,
NEKAR NAGAR, OLD-HUBBALLI, HUBBALLI-580020.
4.
VINOD S/O. SRINIVAS BINGEKAR
AGE:27 YEARS, OCC: COOLIE,
R/O. CHABBI PLOT, NEAR DATTATRAYA TEMPLE,
NEKAR NAGAR, OLD-HUBBALLI, HUBBALLI-580020.
5.
DEEPA D/O. SRINIVAS BINGEKAR
AGE:25 YEARS, OCC:HOUSEHOLD WORK,
R/O. CHABBI PLOT, NEAR DATTATRAYA TEMPLE,
NEKAR NAGAR, OLD-HUBBALLI, HUBBALLI-580020.
6.
SMTRENUKA W/O NATOJI PATANGE
AGE: 53 YEARS, OCC: HOUSEHOLD
WORK,R/O.T:POST:SOMAVARPETH, KITTUR,
TQ. NAILHONGAL, DIST: BELAGAVI-590001.
…RESPONDENTS
(BY SRI S. A. SANDUR, AND SRI. K. L. PATIL, ADVOCATES FOR
RESPONDENT NO.1; SRI SATISH M. KARAD, ADVOCATE FOR
RESPONDENT NO.6; RESPONDENTS NO. 2 TO 5 SERVED
UINREPRESENTED)
---
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED. 27.06.2016 PASSED IN O.S.
NO. 209/2012, BY THE LEARNED PRINCIPAL SENIOR CIVIL
JUDGE COURT, HUBBALLI BY DISMISSING THE SUIT OF THE
PLAINTIFF WITH COSTS THROUGHOUT AND BY ALLOWING
THIS APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
- 4 -
RFA No. 100242 of 2016
C/W RFA No. 100243 of 2016
THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
RFA No.100242/2016 is filed by defendant No.5 and
RFA No.100243/2016 is filed by defendant No.6
challenging the judgment and preliminary decree dated
27.06.2016 passed in O.S.No.209/2012 on the file of
the Principal Senior Civil Judge and JMFC, Hubballi.
For the sake of convenience, parties are referred to as
per their rankings before the trial Court.
The appellant in RFA No.100242/2016 is defendant
No.5, respondent No.1 is the plaintiff, respondents
No.2 to 6 are defendants No.1 to 6. The appellant in
RFA No.100243/2016 is defendant No.6, respondent
No.1 is the plaintiff and respondents No.2 to 6 are
defendants No.1 to 5.
The brief facts leading rise to the filing of these appeals
are as under:
- 5 -
4.1. The plaintiff filed a suit for partition and separate
possession in respect of the suit properties. It is
the case of the plaintiff that, the original
propositus was one late Ramchandra Dasappa
Binge was having wife by name Annapurna and
they
had
three
sons
namely,
Gnayeshwar
(plaintiff), Srinivas and Renuka. Defendant No.1
is the wife of Srinivas, defendant Nos. 2 to 4 are
the children of late Srinivas. The original
propositus died on 05.08.1973, leaving behind his
three sons as his legal heirs and Srinivas died on
06.01.2002, leaving behind defendants No.1 to 4.
4.2. It is the case of the plaintiff that the suit schedule
property is the joint family property of plaintiff,
defendants No.1 to 4 and defendant No.5 and no
partition is effected in between the plaintiff his
brother Srinivas and defendant No.5. Defendant
No.5 taking undue advantage of illiteracy of late
Srinivas and Annapurna and blindness of the
plaintiff, colluding with her husband, got created
- 6 -
a forged unregistered partition deed dated
05.05.1995 by forging the signature of the
plaintiff and of late Srinivas and Annapurna
Bingekar playing fraud. It is contended that the
suit property was owned by Ramachandra, who
was the father of the plaintiff and defendant No.5
and grand father of defendants No.2 to 4. The
mother of plaintiff and defendant No.5 and
mother-in-law of defendant No.1 and grand
mother of defendants No.2 to 4 died on
06.01.2000 and there was no occasion for the
plaintiff and deceased to execute any document
much less the alleged partition deed dated
05.05.1995. Hence the alleged partition deed is
illegal and concocted. Since from the year 2003,
plaintiff and defendants No.1 to 4 requested for
partition, but defendant No.5 was postponing the
same on one or other ground, but defendants
No.1 to 4 sold their share in favour of defendant
No.5. He in tern, executed the registered sale
- 7 -
deed in favour of defendant No.6 behind the back
of the plaintiff with an intention to grab the share
of the plaintiff. Hence the alleged sale deed
executed by defendants No.1 to 4 in favour of
defendant No.5 and the sale deed executed by
defendant No.5 in favour of defendant No.6 is
illegal and is not binding on the share of the
plaintiff. Hence the plaintiff requested defendant
No.5 to effect partition, but defendant No.5
refused to effect the partition and hence cause of
action aroses for the plaintiff to file suit for
partition and separate possession.
Though the trial Court issued summons to defendants 1
to 4, in spite of service of summons, defendants No.1
to 4 remained absent and placed ex-parte.
Defendant No.5 filed written statement denying the
averments made in the plaint and it is contended that
the suit filed by the plaintiff is barred by limitation and
further he is estopped from contending contrary to the
- 8 -
family arrangement dated 05.05.1995, to which
defendants No.1 to 5 and the plaintiff himself are
parties with their signatures. It is also denied that
defendant No.5 by playing fraud executed registered
sale deed by defendants No.1 to 4. It is contended
that the plaintiff is a party to the said family
arrangement deed dated 05.05.1995 and he has put
his signature on the said document. Based on the
said
f
