Advocates:
['SACHIN S MAGADUM', '', 'RAVI S BALIKAI', 'R', '', 'S B KUSTIGAR : ARUN P BOLAJ', 'FOR C/R CP']

1

IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 12^TH DAY OF JANUARY 2015

BEFORE

THE HON’BLE MR. JUSTICE S.N. SATYANARAYANA

R.S.A.NO.5545/2009

C/W.

R.S.A.NO.5583/2009

IN RSA NO.5545/2009

BETWEEN:

AJIT S/O SHANTINATH UPADHYE

AGE: ABOUT 57 YEARS, OCC: DOCTOR

R/O.BHOJ, TQ: CHIKKODI, NOW

R/AT: BEHIND SAMRAT HOTEL

R/O: KOLHAPUR-416001,

STATE : MAHARASTRA

.. APPELLANT

(BY SRI SACHIN S. MAGADUM, ADVOCATE.)

AND:

1.

CHAMPABAI W/O. SHANTINATH UPADHYE

AGE: 73 YEARS, OCC: AGRICULTURE,

R/O: BHOJ, TQ : CHIKKODI-591201

DIST : BELGAUM

2.

MAHAVEER S/O. SHANTINATH UPADHYE

AGE : 51 YEARS, OCC: AGRICULTURE,

R/O : BHOJ, TQ : CHIKKODI-591201

DIST : BELGAUM

2

3.

PREMATAI W/O. MAHAVEER UPADHYE

AGE : 44 YEARS, OCC : AGRICULTURE,

R/O : BHOJ, TQ : CHIKKODI-591201

DIST : BELGAUM

.. RESPONDENTS

(BY SRI RAVI S. BALIKAI, ADVOCATE, FOR R2 & R3.)

THIS REGULAR SECOND APPEAL IS FILED

UNDER SECTION 100 OF CPC, AGAINST

THE

JUDGEMENT

&

DECREE

DATED

27.07.2009

PASSED IN R.A.NO.236/2007, ON THE FILE OF THE

II

ADDITIONAL

DISTRICT

JUDGE,

BELGAUM,

DISMISSING THE APPEAL FILED AGAINST THE

JUDGMENT DATED 16.06.2007 AND THE DECREE

PASSED IN O.S.NO.36/2004, ON THE FILE OF THE

CIVIL JUDGE (SR.DN.) CHIKODI, DECREEING THE

SUIT

FILED

FOR

PARTITION

AND

SEPARATE

POSSESSION, ETC.,.

IN RSA NO.5583/2009

BETWEEN:

AJIT S/O SHANTINATH UPADHYE

AGE: 57 YEARS, OCC: DOCTOR

R/O. BHOJ, TQ: CHIKODI, NOW

R/AT: BEHIND SAMRAT HOTEL

R/O: KHOLHAPUR-416001

STATE: MAHARASTRA

.. APPELLANT

(BY SRI SACHIN S. MAGADUM, ADVOCATE.)

3

AND:

1.

CHAMPABAI W/O. SHANTINATH UPADHYE

AGE: 75 YEARS, OC: AGRICULTURE,

R/O. BHOJ, TAL: CHIKODI-591201

DIST: BELGAUM

2.

MAHAVEER S/O. SHANTINATH UPADHYE

AGE: 53 YEARS, OCC: AGRICULTURE

R/O:BHOJ, TAL: CHIKODI-591201

DIST: BELGAUM

3.

PEMATAI W/O. MAHAVEER UPADHYE

AGE: 47 YEARS, OCC: AGRICULTURE

R/O:BHOJ, TAL: CHIKODI-591201

DIST: BELGAUM

.. RESPONDENTS

(BY SRI RAVI S. BALIKAI, ADVOCATE, FOR R2 & R3.)

THIS REGULAR SECOND APPEAL IS FILED

UNDER SECTION 100 OF CPC, AGAINST

THE

JUDGEMENT

&

DECREE

DATED

27.07.2009

PASSED IN R.A.NO.90/2007, ON THE FILE OF THE

II

ADDITIONAL

DISTRICT

JUDGE,

BELGAUM,

DISMISSING THE APPEAL FILED AGAINST THE

JUDGMENT DATED 16.06.2007 AND THE DECREE

PASSED IN O.S.NO.36/2004, ON THE FILE OF THE

CIVIL JUDGE (SR.DN.), CHIKODI, DECREED THE

SUIT

FILED

FOR

PARTITION

AND

SEPARATE

POSSESSION, ETC.,.

THESE APPEALS COMING ON FOR ADMISSION

THIS

DAY,

THE

COURT

DELIVERED

THE

FOLLOWING:

4

JUDGMENT

The defendant in O.S.No.36/2004 on the file

of Civil Judge (Sr.Dn.), Chikodi, has come up in

these two appeals. In RSA.5545/2009 he is

impugning the divergent finding of the lower

appellate Court in declining his counter claim in

R.A.No.236/2007 filed by the plaintiffs in the

original

suit.

In

R.S.A.No.5583/2009

he

is

impugning the concurrent finding rendered while

dismissing defendant’s appeal in R.A.No.90/2007,

which was with reference to mesne profits in

respect of Mangur village properties.

2.

Brief facts leading to these two second

appeals are that the plaintiffs in O.S.No.36/2004

are one Smt.Champabai W/o.Shantinath Upadhye

and their second son Mahaveer and the wife of

said Mahaveer, Smt.Prematai. The sole defendant

in the said suit is Ajit who is son of the 1^st

plaintiff Champabai and her deceased husband

5

Shantinath Upadhye. Admittedly the family of

Shantinath Upadhye is family of priests. Though

Shantinath Upadhye had right to perform pooja in

a temple at Bhoj village, he did not opt for that,

instead he pursued avocation of teacher i.e.,

teacher in a Government Primary School. His

family consisted of himself, his wife Champabai,

the 1^st plaintiff and his two sons i.e., the 2^nd

plaintiff and sole defendant. The fact that late

Shantinath Upadhye looked after his family with

the assistance of his salary as a Teacher and also

from out of the income that is generated by four

properties inherited by him in Sy.Nos.399/4,

399/9, 835/4 and 835/5 of Bhoj village, Chikodi

taluk in Belgaum district, is not in di