IN THE COURT OF ADDL.

SENIOR CIVIL JUDGE & JMFC

MUDHOL AT: MUDHOL
Present: Shri Umesh.S.Atnure
B.Com.,LL.B.(Spl)
Addl.Senior Civil Judge & JMFC, Mudhol
ORIGINAL SUIT No.104/2014
DATED ON THIS 01st DAY OF September– 2017

1. Smt.Irakka W/o Abhasaheb Patil,

Age: 68 years, Occ: Household work,
R/o H.No.353, Opp.Jaya Vijaya School,
Mantur Road, Mudhol, Dist: Bagalkot and also
R/o 21/B-1, Bhuduvarpeth, Samrat Chowk,
Solapur, Maharastra State.

2. Shivanand S/o Abhasaheb Patil

Age: 37 years, Occ: Nil,
R/o H. No.353, Opp. Jaya Vijaya School,
Mantur Road, Mudhol, Dist: Bagalkot and also
R/o : 21/B-1 Bhuduvarpeth, Samrat Chowk,
Solapur Maharastra State.
…PLAINTIFFS.
-VERSUS-
1. Basavaraj @ Ravasaheb S/o Shivappa Patil
Age: 82 years, Occ: Nil,
R/o H.No 353, Opp. Jaya Vijaya School,
Mantur Road, Mudhol, Dist: Bagalkot and also
R/o : 21/B-1 Bhuduvarpeth, Samrat Chowk,
Solapur Maharastra State.

2. Smt.Sudha W/o Annasaheb Patil

Age: 54 years, Occ: Household work,
R/o Behind Udupi Lodge, Station Road,
HUBLI

3. Smt. Smita W/o Ramesh Piddanagoudar

Age: 25 years, Occ: Household work,
R/o Yalavatti, TQ: Shirahatti, Dist: Gadag.

4. Kumari Shruti D/o Annasaheb Patil

Age: 22 years, Occ: Student,
R/o Behind Udupi Lodge, Station Road,
HUBLI.
 2 O.S No: 104/2014

5. Smt.Sugala W/o Rachanagouda Patil

Age: 65 years, occ: household work,
R/o Dambal, Tq: Sindagi, Dist: Bijapur.

6. Smt.Jayashri W/o Mallikarjun Patil,

Age: 60 years, Occ: household work,
R/o Attigeri, Tq: Shiggaon, Dist: Haveri.

7. Kumari. Kashibai D/o Bapusaheb Desai

Age: 50 years, Occ: Household work,
R/o Attigeri, TQ: Shiggaon Dist:.Haveri.

8. Tatasaheb S/o Bapusaheb Desai

Age: 45 years, occ: Nil,
R/o Attigeri, Tq: Shiggaon Dist: Haveri
(Where abouts are not known last 10 years ).

9. Smt.Sarojani W/o Basavaraj Dolli

Age: 76 years, Occ: Household work,
R/o Sainik Nagar, Bijapur Naka, Solapur
Maharastra State.

10. Kumari Mahadevi D/o Shivappa Patil

Age: 73 years, occ: household work,
R/o 21/B-1, Bhuduvarpeth, Samrat Chowk,
Solapur, Maharastra State.

11. Kumari. Basavanyawwa D/o Shivappa Patil

Age: 70 years, Occ: Household work,
R/o 21/B-1 Bhuduvarpeth, Samrat Chowk,
Solapur, Maharastra State.
…DEFENDANTS
====
Plaintiffs by Sri.MBH Advocate .
Defendant No-1 by Sri. BRD advocate .
Defendant No-2 to 4 by Sri.RGN Advocate.
Defendant No-5 to 7, 9 to 11 placed exparte
====
Date of Institution of Suit : 15.11.2014
Nature of Suit : Suit for partition and
separate possession

Date of commencement : 11.01.2017

of recording of the evidence
Date on which Judgment was : 01.09.2017
Pronounced
 3 O.S No: 104/2014

Total duration : Year/s Month/s Day/s

02 09 16
*****
JUDGMENT
1. This is a suit for partition and separate possession of

plaintiffs legitimate share in the suit schedule

properties.

2. The brief facts of the case of the plaintiff is that the

propositus Shivappa Patil died about 65 years back

and his wife Parvatibai died in the year 2001 leaving

behind them, 3 sons namely Appasaheb, Basavaraj

and Abbasaheb. 4 daughters namely Tarakka,

Sarojini, Mahadevi, Basavanyawwa. Apasaheb gone

in adoption to another family about 65 years back,

Abbasaheb died about 5 years back leaving behind

plaintiff No-1 as his widow and plaintiff No-2 as his

son and also one daughter Neelu, she died unmarried

on 08.04.2014. The plaintiffs are the only legal heirs

of deceased Abbasaheb. Further Tarakka died about

19 years back. Plaintiff No-1 is the daughter of

deceased Tarakka she was given in marriage to

Abbasaheb. The plaintiff No-1, Annasaheb,

defendant No-5 to 7 are sons and daughters of

Tarakka and defendant No-2 to 4 are the wife and

 4 O.S No: 104/2014

children of deceased Annasaheb. Defendant No-9 to

11 are sisters of deceased Abbasaheb Patil and

defendant no. 1. The plaintiff, defendant No-1, 10

and 11 form an undivided joint Hindu family, at no

point of time partition was taken place in between

the joint family members. The plaintiff and

defendant No-1, 10 and 11 owned schedule B and C

properties. Defendant No-9 married long back, she is

residing in her husband's house, defendant No-9 to

11 are born prior to 1956. As such they are entitled

for share as per notional partition. At no point of time

the partition was taken place in between them. Now

defendant No-1 started to act adverse to the interest

of plaintiff, as well as defendant No-10 and 11,

previously defendant No-1 used to give share in the

crops to the plaintiff, but now a days he started to

avoid for giving share in the crops. So, they have

requested the defendant No-1 to effect partition and

allot their legitimate share in the schedule properties,

but the defendant No-1 has avoided to effect the

partition, as such they have filed the suit.

3. The defendant No-1 filed written statement, denied

the entire contention of the plaintiff. He further

contended that, item No-1 to 4 of schedule B

 5 O.S No: 104/2014

properties are belonging to husband of the plaintiff

No-1 and himself. After death of their father

Shivappa the property Sl. No: 5 of schedule B

property came to the husband of plaintiff No-1 and

defendant No-1. After the death of their mother, said

properties were succeeded by them, as the

occupancy rights were granted in the name of

defendant No-1 and husband of plaintiff No-1 and

their mother Parvati jointly. Suit schedule C property

Sl No: 1 bearing CTS No: 2615 of Mudhol and another

property situated at Solapur, Maharastra State

bearing T-P2, 21B/2 belonging to defendant No-1 and

husband of plaintiff No-1, as these properties were

granted to them. As his father was died in the year

1950, so in the understanding between the husband

of plaintiff No-1 and himself as per will of husband of

plaintiff No-1 half share in property bearing T-P2,

21B/2 towards western side was given to him and

rest of the half portion towards eastern side was

allotted to defendant No-1. So, also the property

situated at Solapur bearing survey No: 8/1 was also

partitioned orally in between him and husband of

plaintiff No-1 to an extent of half share each. All the

defendants were consented for the above said

 6 O.S No: 104/2014

partition, now they are estopped from claiming share

in those properties. The husband of plaintiff No-1

being Doctor having practice at Solapur, he given up

his total share in the suit properties of schedule B Sl.

No: 1 to 4 and SL No: 1 of schedule C to the him.

Hence he become the owner of the above said

properties. As per the partition stated above,

husband of plaintiff no. 1 during his life time enjoyed

properties without there being any disturbance or

obstruction from any member of the joint family. And

he is enjoying the properties which are fallen to his

share. About 5 years back, husband of plaintiff No-1

was died since from the date of his death, the

plaintiffs are residing in the share allotted to her

husband situated at Solapur. None of the occasion

they claimed share in the rest of the properties

allotted to him. After the death of the mother of

defendant No-1 the plaintiff and other female issues

of Shivappa filed Varadi to enter their names to the

RTC extract of the suit schedule properties situated at

Mudhol, when it was came to his knowledge he

submitted objections and dispute was registered.

The Tahasildar Mudhol held an enquiry, after enquiry

he rejected the disputed M.E wherein the names of

 7 O.S No: 104/2014

plaintiff and other female issues of Shivappa tried to

mutate their names in the RTC of property situated at

Mudhol. Thereafter no appeal was preferred by them.

Hence they are estopped from claiming share in the

suit schedule B and C properties. He further

contended that, in the year 1989 after the death of

Shivappa his first wife, son by name Murigeppa filed

a suit for partition in O.S No: 291/1989 and said suit

was ended in compromise on 13.03.1990 wherein the

himslef, husband of plaintiff No-1 and their mother

are the only parties. In that compromise decree all

the suit properties situated at Mudhol have been

given to the share of husband of plaintiff No-1,

defendant No-1 and their mother Parvati. On the

basis of said compromise decree, after the death of

their mother, husband of plaintiff No-1 and himslef

become owners of the properties situated at Mudhol.

Subsequently amicable partition was took place in

between husband of plaintiff No-1 and defendant No-

1, as such there is no question of joint family as on

the date of filing of the suit. The plaintiff has not

properly described the suit properties, the genealogy

submitted by the plaintiff is incorrect. Taking undue

advantage of his old age the plaintiffs are filed this

 8 O.S No: 104/2014

false suit, as such defendant No-1 prayed to dismiss

the suit.

4. Defendant No-2 to 4 are appeared through their

counsel, but they have not filed any written

statement. Defendant No-5 to 11 are placed exparte.

5. Based on the above pleadings the following issues

are framed.

//ISSUES//

1 : - Whether plaintiff proves that, suit

schedule B & C properties are Hindu undivided

joint family coparcenary properties of

themselves and Defendant No.1, 10 and 11 ?

2 :- Whether defendant No-1 proves that,

already a partition has taken place in the

family, as contended in para 8, 9 and 13 of

written statement ?

3 : - Whether Defendant No-1 proves that,

husband of plaintiff No.1 has given up his share

in Sl No. 1 to 4 properties of Schedule 'B' and Sl

No. 1 property of Schedule 'C' to Defendant No-

1 as contended in written statement ?

 9 O.S No: 104/2014

4 : Whether valuation made and court fee paid

is proper and correct ?

5 : Whether the plaintiffs are entitled for relief

of partition and separate possession ? If so, to

what extent ?

6 : What order or Decree ?

6. In support of the plaintiffs case, plaintiffs got

examined their GPA holder as P.W-1 and got marked

Ex.P-1 to 12. The defendant No-1 examined himself

as D.W-1 and got examined one witness Rajeshekar

Muddappa Patil as D.W-2 and got marked Ex.D-1 to 4

and closed their side.

7. Heard the arguments of both the sides. Perused the

materials placed on record. Further the learned

counsel for the defendant no. 1 submitted written

arguments. I have perused the same.

8. My answer to the above issues are as follows;

Issue No-1 :- In the Affirmative

Issue No-2 :- In the Negative

Issue No-3 :- In the Negative

Issue No-4 :- In the Affirmative

Issue No-5 :- In the Affirmative

 10 O.S No: 104/2014

Issue No-6 :- As per final order for the

following;

REASONS

9. Issue No.1 :- It is the case of the plaintiff that, the

plaintiffs and defendants NO. 1 10, 11 are the

members of the joint family and the suit schedule

properties are their joint family properties. They are

in joint possession and enjoyment of the suit

schedule properties till today no partition was

effected in between them. On the other hand the

defendant No-1 was admitted the relationship and

denied other contention of the plaintiff. The

defendant No-1 specifically contended that, after the

death of their father Shivappa and their mother

Parvatewwa there is a amicable partition between

himself and husband of plaintiff No-1, in that partition

the properties situated at Solapur i.e., land bearing

R.S No: 8/1 and house property bearing TP 21/B-2 are

divided equally and half share was allotted to the

plaintiff No-1's husband and defendant No-1. And the

husband of the plaintiff no. 1 was given up his share

in the properties situated at Mudhol in his favour. As

such there is not joint family status in between them

as contended by the plaintiff.

 11 O.S No: 104/2014

10. In support of the case of the plaintiffs, plaintiff's

power of attorney holder was examined as P.W-1 and

he got marked power of attorney as Ex.P-1, RTC

extract of the suit properties as per Ex.P-2 to 9. By

perusing the RTC extract which are marked as per

Ex.P-2 to 9 they clearly goes to show that, the land

bearing R.S No: 75/1 is jointly standing in the name of

defendant No-1, husband of plaintiff No-1 and their

mother Parvati and their father Shivappa. Further the

RTC extract of R.S No: 76/1 is marked as per Ex.P-3

wherein the said property is standing in the name of

defendant No-1, husband of plaintiff No-1 their

mother Parvatibai, RTC extract of R.S No: 180/1 and

513/1 are also jointly standing in the name of

husband of plaintiff No-1, defendant No-1 their

mother Parvati. By perusing these documents they

clearly goes to show that, till today the suit schedule

B properties are jointly standing in the name of

husband of plaintiff No-1, defendant No-1 and their

mother Parvatibai. Further the plaintiffs are produced

the Ruled Card of property bearing No 2615 and RTC

extract of R.S No: 8/1 as per Ex.P-8 and its translation

copy at Ex.P-8(a) and property extract of land bearing

TP2 21b as per Ex.P-9 and its translation copy at

 12 O.S No: 104/2014

Ex.P-9(a). By perusing these documents, they also

clearly goes to show that, these properties are jointly

standing in the name of husband of the plaintiff no. 1,

defendant No-1 and other joint family members. By

looking to all these documents it is clear that, these

properties are jointly standing in the name of plaintiff

No1's husband, defendant No-1 and their mother and

other family members. These facts probabalize that,

no partition was took place in between plaintiffs and

defendants by metes and bounds.

11. Further in the cross examination of P.W-1, he clearly

denied that, after the death of father of defendant

No-1 Shivappa there was oral partition between

plaintiff No-1's husband and defendant No-1 and

further in the cross examination of D.W-1 he deposed

that, there was oral partition in between husband of

the plaintiff No-1 and himself, but he clearly deposed

that, there is no documents to that effect. Hence by

looking to the oral and documentary evidence which

has been adduced by the plaintiffs and defendants it

clearly goes to show that, till today no partition was

effected in between the plaintiffs and defendants by

metes and bounds. The suit schedule properties are

the joint family properties of the plaintiffs and

 13 O.S No: 104/2014

defendants. Hence I answer Issue No: 1 in the

Affirmative.

12. Issue No: 2 & 3 : - These issues are interlinked with

each other. Hence they are taken together for

discussion jointly to avoid repetition of discussion.

The defendant No-1 has contended that, already the

partition was effected in the joint family and there is

no joint family in existence as contended by the

plaintiff and it is also contention of the defendant No-

1 that, the husband of the plaintiff No-1 has given up

his share in Sl.No: 1 to 4 of B schedule properties and

Sl.No: 1 of C schedule properties in his favour. The

defendant No-1 got examined himself as D.W-1 and

he reiterated the written statement averments and

he got marked the order copy of the Tahasildar

Mudhol in RTC SR-68/11-12 as per Ex.D-1, RTS-SR

69/11-12 as per Ex.D-2, certified copy of the

compromise decree in O.S No: 291/1989 as per Ex.D-

3, Form No-9 as per Ex.D-4, its translation copy as

per Ex.D-4(a). By perusing these documents nothing

is forthcoming to show that, the oral partition was

taken place in between the husband of plaintiff No-1

and defendant No-1. Further it is also contention of

the defendant No-1 that, the husband of defendant

 14 O.S No: 104/2014

No-1 was given up his share in Sl.No: 1 to 4 of

schedule B properties and Sl.No: 1 of C schedule

properties in his favour. But in support of this

contention there is no cogent and acceptable

material is put forth by the defendant No-1. And

further by perusing the cross examination of D.W-1

he clearly deposed that, there is no documents to

show that, there was a partition effected in between

himself and husband of the defendant No-1. And

further he also categorically deposed that, in the suit

schedule properties the husband of the plaintiff No-1

and himself are having half share each and he further

contended that, their father was died on 08.02.1950,

as such the defendant No-9 to 11 were born prior to

1950, hence they are not entitled for the share in the

suit schedule property. By perusing the cross

examination of D.W-1 clearly goes to show that, there

is no partition was effected in between husband of

the plaintiff No-1 and defendant No-1 by metes and

bounds. There is no material is put forth by the

defendant No-1 to show that, the husband of the

plaintiff No-1 was given up his share in Sl.No: 1 to 4

of Schedule B properties and Sl.No-1 of Schedule C

properties in his favour. Further the defendant no. 1

 15 O.S No: 104/2014

got examined one witness by name Rajshekhar as

DW.2. In his examination in chief he deposed that

already amicable partition was taken place in

between the husband of plaintiff no. 1 and defendant

no. 1. And the husband of the plaintiff no. 1 was

allotted the properties situated at Solapur and

defendant no. 1 was allotted the properties situated

in Mudhol. By looking to the cross examination of

this witness it is clear that he is not having any

knowledge about the family of the plaintiffs and

defendants and he don't know what are properties

fallen to the share of the share of the husband of the

plaintiff no. 1 and defendant no.1. Hence the

evidence of DW.2 is no way helpful to the defendant

no. 1. Hence I am of the considered view that the

defendant no. 1 failed to prove the issue no.2 and 3.

Hence I answer Issue No: 2 and 3 in the

Negative.

13. Issue No: 4 : - Defendant No-1 has contended that,

the plaintiff has not properly valued the suit and

court fee paid by the plaintiff is incorrect. In support

of this contention the defendant No-1 has not put

forth any material to show that, the valuation made

by the plaintiff is incorrect and court fee paid by the

 16 O.S No: 104/2014

plaintiff is insufficient. This present suit is filed for

the relief of partition and separate possession of

plaintiffs legitimate share in the suit schedule

properties. The plaintiffs are valued the suit U/s

35(2) R/w section 7(2)(b) of Karnataka court fees and

suit valuation Act, and accordingly they have valued

landed properties to the plaintiffs joint share at one

crores and maximum court fee of Rs.200/- is paid by

the plaintiff. By perusing the valuation made by the

plaintiff, it is clear that, the plaintiffs are properly

valued the suit property as per Section 35(2) R/w

Section 7(2)(b) of Karnataka Court Fees and Suit

Valuation Act and they have paid sufficient court

fees. Hence the contention of the defendant No-1 is

not acceptable one. Accordingly I answer issue No: 4

in the Negative.

14. Issue No: 5 : - The plaintiffs are contended that, the

suit schedule properties are joint family properties

and they are entitled for 1/3rd share + 1/18th share

in the suit schedule properties along with defendant

No-2 to 7. In this case there is no dispute with regard

to the relationship between the parties and the suit

schedule properties are the joint family properties.

Further there is no dispute that, the propositus of the

 17 O.S No: 104/2014

joint family by name Shivappa was died in the year

1950. Hence it is clear that, the succession was

opened in the year 1950. Further the husband of the

plaintiff No-1 and defendant No-1 and Tarakka ,

Appasaheb, defendant No-9 to 11 are sons and

daughter of propositus Shivappa. Further it is also an

admitted fact that, one of the son by name

Appasaheb was gone in adoption to other family.

Hence Abbasaheb who is the husband of plaintiff No-

1 and father of plaintiff No-2, defendant No-1 are the

only sons and defendant No-9 to 11 and deceased

Tarakka are the daughters of Shivappa. As their

father was died in the year 1950, hence the

daughters will get notional partition in the suit

schedule properties. In the notional partition their

father Shivappa, the husband of plaintiff No-1 and

defendant No-1 will get 1/3rd share each and out of

the 1/3rd share fallen to the propositus Shivappa the

husband of the plaintiff No-1, defendant No-1 their

sister Tarakka and defendant No-9 to 11 will get

equal share out of the share fallen to the share of

Shivappa. Hence Tarakka, defendant No-9 to 11 will

get 1/18th share in the suit schedule properties.

Hence the plaintiffs and defendant No-1 will get

 18 O.S No: 104/2014

7/18th share each and deceased Tarakka, defendant

No-9 to 11 will get 1/18th share each in the suit

schedule properties. As the one of the daughter of

Shivappa by name Tarakka was died and defendant

no. 2 to 7 are the heirs of Tarakka, they will succeed

the share of Tarakka I.e 1/18th share. Hence I answer

issue No: 5 in the Affirmative.

15. Issue No: 6 : - In view of above discussions made on

issues , I proceed to pass the following;

ORDER
The suit of the plaintiffs is hereby
decreed.
The plaintiffs are entitled for 7/18 th
share, defendant No-1 is entitled for
7/18th share and defendant No-9 to 11
are entitled for 1/18th share each.
Further the defendant no. 2 to 7
together are entitled for 1/18th share in
the suit schedule properties.
Draw preliminary decree
accordingly.
(Dictated to the Stenographer, transcribed and typed by him, the same is
corrected, signed and then pronounced by me in the open court on this the
1st DAY OF September-2017)

(Umesh S. Atnure)
Addl Senior Civil Judge & J.M.F.C,
MUDHOL
 19 O.S No: 104/2014

ANNEXURES

LIST OF WITNESSES EXAMINED BY THE PLAINTIFFS :

P.W-1 :- Venkanna S/o Govindappa Nadagouda

LIST OF DOCUMENTS EXHIBITED BY PLAINTIFFS :

Ex.P-1 :- General Power of attorney.

Ex.P-2 :- RTC of R.S No: 75/1,
Ex.P-3 :- RTC of R.S No: 76/1,
Ex.P-4 :- RTC of R.S No: 180/1,
Ex.P-5 :- RTC of R.S No: 513/1
Ex.P-6 :- Ruled card bearing 2613
Ex.P-7 :- Ruled card bearing No: 1960
Ex.P-8 :- RTC of R.S No: 8/1
Ex.P-8(a) :- Translation of RTC 8/1
Ex.P-9 :- TP-2, 21B/2
Ex.P-9(a) :- Translation of RTC TP-2,21B/2
Ex.P-10 :- Affidavit of Prakash Ramachandra
Sanglekar
Ex.P-11 :- Death certificate of Parvati
Ex.P-12 :- Death certificate of Dr.Abasaheb
LIST OF WITNESSES EXAMINED BY DEFENDANTS

D.W-1 :- Basavaraj @ Ravasaheb Shivappa Patil

D.W-2 :- Rajshekhar Muddappa Patil
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF DEFENDANTS

Ex.D-1 :- RTS-SR 68/11-12

Ex.D-2 :- RTS-SR69/11-12
Ex.D-3 :- Certified copy of decree in O.S 291/89
Ex.D-4 :- Form No-9 of property
Ex.D-4(A) :- Translation of property extract

(Umesh S. Atnure )
Addl Senior Civil Judge & J.M.F.C,
MUDHOL
20 O.S No: 104/2014
 21 O.S No: 104/2014

Case called in the open court. Judgment pronounced in the

open court. Operative portion of the Judgment is as under:

ORDER

The suit of the plaintiffs is hereby

decreed.
The plaintiffs are entitled for 7/18 th
share, defendant No-1 is entitled for
7/18th share and defendant No-9 to 11
are entitled for 1/18th share each.
Further the defendant no. 2 to 7
together are entitled for 1/18th share in
the suit schedule properties.
Draw preliminary decree

accordingly.

(Umesh S. Atnure )
Addl Senior Civil Judge & J.M.F.C,
MUDHOL

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