IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 20TH DAY OF APRIL 2017

BEFORE

THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR

R.S.A. NO.6138/2011 (PAR) C/W R.S.A.NO.6139/2011

R.S.A. NO.6138/2011

BETWEEN:

• 1. UPPARA T PAKEERAPPA S/O. UPPARA BHEEMAPPA, AGED ABOUT: 69 YEARS, OCC: AGRICULTURE, R/O: UPPARA STREET, KARATAGI VILLAGE, TQ: GANGAVATHI, DIST: KOPPAL.
• 2. HANUMAKKA @ HANUMAMMA W/O. UPPARA T PAKEERAPPA, AGED ABOUT: 64 YEARS, R/O: UPPARA STREET, KARATAGI VILLAGE, TQ: GANGAVATHI, DIST: KOPPAL.

... APPELLANTS

(BY SRI. B.SHARANABASAWA, ADV.)

AND

1. PUSHPAVATHI @ LALITHA W/O. RAMANNA @ RAMESH, AGED ABOUT: 34 YEARS, OCC: AGRICULTURE, R/O: CHERUKUNTA VILLAGE, TQ & DIST: BELLARY.

• 2. KALAMMA W/O. LATE MAREPPA, AGED ABOUT: 46 YEARS, OCC: AGRICULTURE, R/O: UPPARA STREET, KARATAGI VILLAGE, TQ: GANGAVATHI, DIST: KOPPAL.
• 3. AYYAPPA S/O. UPPARA DODDAPPA AGED ABOUT: 29 YEARS, OCC: BUSINESS, R/O: UPPARA STREET, KARATAGI VILLAGE, TQ: GANGAVATHI, DIST: KOPPAL.
• 4. MANJULA W/O. AYYAPPA, AGED ABOUT: 26 YEARS, OCC: AGRICULTURE, R/O: UPPARA STREET, KARATAGI VILLAGE, TQ: GANGAVATHI, DIST: KOPPAL.

... RESPONDENTS

RSA FILED U/S 100 OF CPC. AGAINST THE JUDGEMENT AND DECREE DATED 22/9/2011 PASSED BY THE DISTRICT AND SESSIONS JUDGE, AT KOPPAL, IN RA NO.51/2010 AND THE JUDGEMENT AND DECREE DATED 31/8/2010 PASSED BY THE LEARNED SENIOR CIVIL JUDGE, AT GANGAVATHI, IN O.S.NO.136/2007, BY ALLOWING THIS APPEAL AND DISMISSING THE SUIT OF THE RESPONDENT NO.1/PLAINTIFF.

R.S.A.NO.6139/2011

• 1. KALAMMA W/O. LATE MAREPPA, AGED ABOUT: 46 YEARS, OCC: AGRICULTURE, R/O: UPPARA STREET, KARATAGI VILLAGE, TQ: GANGAVATHI, DIST: KOPPAL.
• 2. AYYAPPA S/O. UPPARA DODDAPPA, AGED ABOUT: 29 YEARS, OCC: BUSINESS, R/O: UPPARA STREET, KARATAGI VILLAGE, TQ: GANGAVATHI, DIST: KOPPAL.

3. MANJULA W/O. AYYAPPA, AGED ABOUT: 26 YEARS, OCC: AGRICULTURE, R/O: UPPARA STREET, KARATAGI VILLAGE, TQ: GANGAVATHI, DIST: KOPPAL.

... APPELLANTS

(BY SRI. Y.LAKSHMIKANT REDDY, ADV.)

AND

• 1. PUSHPAVATHI @ LALITHA W/O RAMANNA @ RAMESH, AGED ABOUT 34 YEARS, OCC: AGRICULTURE, R/O: CHERUKUNTA VILLAGE, TQ & DIST: BELLARY-583103.
• 2. UPPARA T PAKEERAPPA, S/O. UPPARA BHEEMAPPA, AGED ABOUT: 69 YEARS, OCC: AGRICULTURE, R/O: UPPARA STREET, KARATAGI VILLAGE, TQ: GANGAVATHI, DIST: KOPPAL.
• 3. HANUMAKKA @ HANUMAMMA W/O. UPPARA T PAKEERAPPA, AGED ABOUT: 64 YEARS, R/O: UPPARA STREET, KARATAGI VILLAGE, TQ: GANGAVATHI, DIST: KOPPAL.

... RESPONDENTS

RSA FILED U/S 100 OF CPC. AGAINST THE JUDGEMENT AND DECREE DATED 22/9/2011 PASSED BY THE DISTRICT AND SESSIONS JUDGE, AT KOPPAL, IN RA NO.52/2010 AND THE JUDGEMENT AND DECREE DATED 31/8/2010 PASSED BY THE LEARNED SENIOR CIVIL JUDGE, AT GANGAVATHI, IN O.S.NO.136/2007, BY ALLOWING THIS APPEAL AND DISMISSING THE SUIT OF THE RESPONDENT NO.1/PLAINTIFF.

THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THIS COURT, MADE THE FOLLOWING:

ORDER

R.S.A.6138/2011 is filed by defendant Nos.1 and 2 and R.S.A.6139/2011 is filed by the defendant Nos.3, 4 and 5 in O.S.No.136/2007 on the file of Senior Civil Judge, Gangavathi. The plaintiff is the wife of one Ramanna, the deceased son of defendant Nos.1 and 2. Defendant No.3, Kalamma is the wife of Mareppa, the first son of defendant Nos.1 and 2. Defendant No.4 Ayyappa is the son of Yankamma, the daughter of defendant Nos.1 and 2. Defendant No.5 is the daughter of defendant No.3 and the wife of defendant No.4. In respect of suit property, the plaintiff claimed partition and separate possession. It is her case that all these properties belong to the joint family. After the death of her husband-Ramanna @ Ramseh, the defendants neglected to look after her, provide maintenance, and therefore, she was constrained to file suit for partition.

2. Defendant Nos.1 and 2 filed written statement contending that the plaintiff is not entitled to seek partition as all these suit properties were their self acquisition. Defendant Nos.3 and 5 also filed written statement denying the right of the plaintiff to claim partition. The trial Court after framing the issues and recording the evidence held that the plaintiff was able to prove that all the suit properties were joint family properties and that the defendants were not able to prove that suit properties Item Nos.2, 3, 5, 7 and 8 of the suit property were their self acquisition. Therefore, the trial Court ultimately decreed the suit holding that the plaintiff was entitled to 1/4th share in all the suit properties.

3. Aggrieved by this judgement and decree, the defendant Nos.1 and 2 preferred an appeal in R.A.No.51/2010 before the District and Sessions Judge, Koppal. Defendant Nos.3 to 5 also preferred an appeal R.A.No.52/2010. The learned District Judge decided these two appeals together by his common judgement

: 5 :

dated 22/9/2011, allowed these two appeals in part and held that the plaintiff was entitled to 1/4th share only in item Nos.1 to 3 and 5, 7 of suit properties and further held that the suit in respect of item Nos.4 and 8 of the suit property was dismissed.

4. Aggrieved by this judgement of the First Appellate Court, defendant Nos.1 and 2 and defendant Nos.3 to 5 have preferred the second appeals separately.

5. I have heard the arguments of the learned counsel for the parties in both the appeals. Firstly, it is to be stated that the relationship between the parties is not disputed. But, the learned counsel for the appellants in R.S.A.6138/2011 argued that in the suit, some of the members of the joint family had not been made parties. Therefore, suit was bad for non-joinder of necessary parties. With regard to this argument, it is to be held that this contention was not taken by defendants in the written statement, nor was it brought to the notice of the trial Court during pendency of the

suit. It appears that it was only in the first appeal this point was urged, and therefore, the learned First Appellate Court dealt with this aspect of the matter at length to come to a conclusion that the suit could not be held to be bad for non-joinder of necessary parties. The reason being that, even if the specific defence of the defendants of the suit properties were their self acquisition could be held to be not proved, the plaintiff would be entitled to ¼ share. Even if those persons should have been made parties, they would not take any share in the plaintiff's share. Therefore, it has to be stated now that if at all there is any objection with regard to non-joinder of necessary party, it must be taken at the earliest stage. If it is urged in the First Appellate Court, it cannot be considered. The learned District Judge has given cogent reasons for not accepting this specific contention of the appellants.

6. The second point that the learned counsel has argued is that one landed property bearing Survey No.27/B measuring 8 acres 16 guntas of Karatagi village is not shown as one of the items of the suit property. But, the plaintiff who adduced evidence as PW-1, does not say how that property was acquired by the joint family. The fact remains that after selling this landed property, the defendants 1 and 2 acquired another property which is 5th item of the suit property. That being so, this argument cannot also be accepted.

7. On going through the entire judgement of the First Appellate Court, I am of the opinion that the learned District Judge has come to right conclusion that the plaintiff is entitled to 1/4th share only in items Nos.1 to 3 and 5 to 7 of the suit property. So this finding of the First Appellate Court cannot be disturbed.

8. In these circumstances, I do not find any substantial question of law for admitting these appeals.

Therefore, these appeals are dismissed.

Sd/- JUDGE

Vmb