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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON’BLE MR.JUSTICE R.NATARAJ
R.S.A. NO.7103 OF 2011(PAR)
C/W
R.S.A. NO.7424 OF 2010 (PAR),
R.S.A. NO.7425 OF 2010 (PAR)
IN R.S.A.N.7103/2011:
BETWEEN:
1.
BOURAWWA
W/O RAMALINGAPPA NAGATHAN
AGE: 54
OCC: H.H. WORK
R/O BIJJARAGI
TQ. AND DIST. BIJAPUR-586101
2.
SAROJINI
W/O SIDDANNA KATAGERI
AGE : 52
OCC: H.H. WORK AND AGRI.
R/O BIJJARAGI,
NOW AT GACCHINAKATTI COLONY,
BIJAPUR-5861011
...APPELLANTS
(BY SRI. V.M.BIRADAR, ADVOCATE)
AND:
1.
SHIVANAND
S/O MALLIKARJUN BIRADAR
AGE: 34
OCC: AGRI
Digitally signed
by LUCYGRACE
Location: HIGH
COURT OF
KARNATAKA
2
2.
RAMESH
S/O MALLIKARJUN BIRADAR
AGE: 28
OCC: STUDENT
3.
AMAGOND
S/O MALLIKARJUN BIRADAR
AGE: 26
OCC: STUDENT
4.
GANGABAI
W/O MALLIKARJUN BIRADAR
AGE: 56
OCC: H.H. WORK
ALL ARE R/O BIJJARAGI
TQ & DIST. BIJAPUR-586101
5.
LAYAPPA
S/O SHIVAPPA BADACHI
AGE: 41
OCC: AGRICULTURE
R/O BABANAGAR
TQ. & DIST. BIJAPUR-586101
…RESPONDENTS
(BY SRI. N.B. DIWANJI, ADVOCATE FOR RESPONDENT NOS.1
TO 4;
SRI. R.V.NADAGOUDA AND SRI. T. VINAYAK APTE, ADVOCATE
FOR RESPONDENT NO.5)
THIS R.S.A. IS FILED UNDER SECTION 100 READ WITH
ORDER 41 RULE 1 OF CODE OF CIVIL PROCEDURE, 1908
AGAINST THE JUDGMENT AND DECREE DATED 19.07.2010
PASSED IN R.A.NO.385/2004 ON THE FILE OF THE FAST TRACK
COURT-I/II AT BIJAPUR, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 19.08.2000
PASSED IN O.S.NO.239/1993 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE (JR.DN.) AT BIJAPUR.
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IN RSA NO.7424/2010:
BETWEEN:
LAYAPPA
S/O SHIVAPPA BADACHI
AGE: 41, OCC: AGRICULTURE
R/O BABANAGAR,
TQ: DIST: BIJAPUR -586 101
...APPELLANT
(BY SRI. VINAYAK APTE AND SRI. R.V.NADAGOUDA,
ADVOCATES)
AND:
1.
NEELAVVA
W/O SHIVAPPA NAGATHAN
AGE: 85, OCC: H.H.WORK
R/O BIJJARAGI,
TQ: AND DIST: BIJAPUR -586 101
2.
GANGABAI
W/O MALLIKARJUN BIRADAR
AGE: 56, OCC: H.H.WORK
R/O BIJJARAGI,
TQ: AND DIST: BIJAPUR -586 101
3.
BOURAWWA
W/O RAMALINGAPPA NAGATHAN
AGE: 54, OCC: H.H.WORK
R/O BIJJARAGI,
TQ: AND DIST: BIJAPUR -586 101
4.
SAROJINI
W/O SIDDANNA KATAGERI
OCC: H.H.WORK AND AGRI
R/O : BIJJARAGI
NOW AT GACCHINKATTI COLONY,
BIJAPUR-586101.
…RESPONDENTS
(BY SRI. N.B.DIWANJI, ADVOCATE FOR RESPONDENT NO.2;
4
VIDE ORDER DATED 24.09.2012, APPEAL AGAINST
RESPONDENT NO.1 STANDS ABATED;
RESPONDENT NOS.3 AND 4 ARE SERVED)
THIS R.S.A. IS FILED UNDER SECTION 100 READ WITH
ORDER 41 RULE 1 OF CODE OF CIVIL PROCEDURE, 1908
AGAINST THE JUDGEMENT AND DECREE DATED 19.07.2010
PASSED IN R.A.NO. 386/2004 ON THE FILE OF THE FAST TRACK
COURT-I / II AT BIJAPUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 19.08.2000
PASSED IN O.S. NO. 239/1993 ON THE FILE OF THE PRL. CIVIL
JUDGE (JR.DN.) AT BIJAPUR.
IN RSA NO.7425/2010:
BETWEEN:
LAYAPPA
S/O SHIVAPPA BADACHI
AGE: 41
OCC: AGRICULTURE
R/O BABANAGAR,
TQ: DIST: BIJAPUR -586 101
...APPELLANT
(BY SRI. VINAYAK APTE AND SRI. R.V.NADAGOUDA,
ADVOCATES)
AND:
1.
SHIVANAND
S/O MALLIKARJUN BIRADAR
AGE: 34
OCC: AGRI.
2.
RAMESH
S/O MALLIKARJUN BIRADAR
AGE: 28
OCC: STUDENT
5
3.
AMAGOND
S/O MALLIKARJUN BIRADAR
AGE: 26, OCC: STUDENT
4.
GANGABAI
W/O MALLIKARJUN BIRADAR
AGE: 56, OCC: H.H.WORK
5.
BOURAWWA
W/O RAMALINGAPPA NAGATHAN
AGE: 54, OCC: H.H.WORK
ALL ARE R/O BIJJARAGI,
TQ. AND DIST: BIJAPUR-586101
6.
SAROJINI
W/O SIDDANNA KATAGERI
AGE: 52
OCC: H.H.WORK AND AGRI.
R/O : BIJJARAGI
NOW AT GACCHINAKATTI COLONY,
BIJAPUR-586101
…RESPONDENTS
(BY SRI. N.B. DIWANJI, ADVOCATE FOR RESPONDENT NOS.1
TO 4;
NOTICE SERVED ON RESPONDENT NOS.5 AND 6)
THIS R.S.A. IS FILED UNDER SECTION 100 READ WITH
ORDER 41 RULE 1 OF CODE OF CIVIL PROCEDURE, 1908
AGAINST THE JUDGMENT AND DECREE DATED 19.07.2010
PASSED IN R.A. NO.385/2004 ON THE FILE OF THE FAST TRACK
COURT - I/II AT BIJAPUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 19.08.2000
PASSED IN O.S. NO. 239/1993 ON THE FILE OF THE PRL. CIVIL
JUDGE (JR.DN.) AT BIJAPUR.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR
ON
15.06.2023,
COMING
ON
PRONOUNCEMENT
OF
JUDGMENT
THROUGH
VIDEO
CONFERENCE
THIS
DAY,
THE
COURT
DELIVERED
THE
FOLLOWING:
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JUDGMENT
R.S.A.No.7424/2010 is filed by the defendant No.3 -
purchaser in O.S.No.239/1993 challenging the judgment
and decree dated 19.08.2000 passed therein by the
Principal Civil Judge (Jr. Dvn.) at Bijapur (henceforth
referred to as 'Trial Court'). He has also challenged the
judgment and decree dated 19.07.2010 passed by the Fast
Track Court - I/II, Bijapur (henceforth referred to as 'First
Appellate Court') in R.A.No.386/2004 by which, the
judgment and decree of the Trial Court was confirmed.
R.S.A.No.7425/2010 is filed by the defendant
No.3 - purchaser challenging the judgment and decree
dated
19.08.2000
passed
by
the
Trial
Court
in
O.S.No.239/1993. He has also challenged the judgment
and decree dated 19.07.2010 passed by the First Appellate
Court in R.A.No.385/2004 by which, the judgment and
decree of the Trial Court was confirmed.
3.
R.S.A.No.7103/2011 is filed by the defendant
Nos.1 and 2 in O.S.No.239/1993 challenging the judgment
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and decree passed by the Trial Court dated 19.08.2000 as
well as the judgment and decree dated 19.07.2010 passed
by the First Appellate Court dismissing R.A.No.385/2004.
4.
The parties shall henceforth be referred to as
they were arrayed before the Trial Court.
5.
The suit in O.S.No.239/1993 was filed for
partition and separate possession of the plaintiffs' 20/27th
share in the suit schedule properties. The plaintiffs
claimed their genealogy as follows:-
Shivappa (Propositus)
Nilavva (plaintiff-1)
Ramalingappa (son)
Gangabai (Daughter)
Bouravva (Deft-1)
(plaintiff-2)
Sarojini (daughter) (Deft -2)
6.
The plaintiff No.1 was the widow of Shivappa,
while plaintiff No.2 and her brother Ramalingappa were her
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children. The husband of the plaintiff No.1 died on
01.03.1964.
After
his
death,
the
plaintiffs
and
Ramalingappa were the heirs, who succeeded to the
properties held by Shivappa. Later, Ramalingappa died on
05.10.1964 leaving behind his wife - defendant No.1 and
his daughter - defendant No.2. The plaintiffs claimed that
'A' schedule properties were the ancestral properties,
which were not partitioned. They contended that the
husband of the plaintiff No.1 died after the commencement
of Hindu Succession Act, 1956 and therefore, a partition
had
to
be
effected
equally
between
Shivappa,
Ramalingappa and Neelavva. They claimed that the
notional share of Shivappa had to be divided amongst the
plaintiffs and deceased - Ramalingappa. Hence, they
claimed that the plaintiff No.1 was entitled to (1/3rd +
1/9th) = 4/9th share in the suit properties. After the death
of Ramalingappa, the plaintiff No.1 also being one of his
Class - I legal heir was entitled to 1/3rd share in 4/9th
share of Ramalingappa. Therefore, it was contended that
the plaintiff No.1 was entitled to 4/9th + 4/27th share. The
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plaintiff No.2 being the heir of Shivappa was entitled to
1/9th share. Consequently, it was claimed that the plaintiffs
together were entitled to 4/9th + 4/27th + 1/9th in the suit
schedule properties. The plaintiffs claimed that all the suit
properties were joint Hindu family properties and they
were entitled to a share in each of the properties.
However, the defendant Nos.1 and 2 had sold the land
bearing Sy.No.102/1 of Bijjaragi village to the defendant
No.3 on 12.09.1983, which was neither for any legal
necessity nor to clear off any antecedent debt. Therefore,
they claimed that the sale deed did not bind their right,
title and interest. They alleged that the defendant Nos.1
and 2 were again trying to sell the land bearing
Sy.No.691/2 of Bijjaragi village though there was no
necessity to do so. They claimed that the defendant Nos.1
and 2 turned down their request for partition which
compelled them to file a suit for partition and separate
possession of their share in the suit schedule properties.
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7.
The defendant No.1 filed a written statement
denying the averments of the plai
