Secretary, vs Kumari. Pooja D/O Veeresh … on 4 January, 2018

IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4TH DAY OF JANUARY, 2018
BEFORE
THE HON’BLE MRS. JUSTICE S.SUJATHA
RSA No.100359/2015 (PAR)
BETWEEN:
SECRETARY,
APMC, BELGAUM DIVISION,
EMPLOYEES WELFARE CO-OP.SOCIETY, LTD.,
HUBBALLI, TQ.HUBBALLI,
DIST: DHARWAD-580 020.
… APPELLANT
(BY SRI.RAVI S.MATTUR, ADV.)

AND:

1. KUMARI. POOJA D/O VEERESH CHIGARI,
AGE:15 YEARS, OCC:STUDENT,
R/O:BUDIHAL, TQ: RON,
DIST: GADAG 582 209

2. KUMARI. LAXMI D/O VEERESH CHIGARI,
AGE:12 YEARS, OCC:STUDENT,
R/O: BUDIHAL, TQ:RON,
DIST: GADAG 582 209

3. KUMAR. AISHWARAYA S/O VEERESH CHIGARI,
AGE:10 YEARS, OCC:STUDENT,
R/O: BUDIHAL, TQ:RON,
DIST: GADAG.582 209

4. KUMAR. MANJUNATH S/O VEERESH CHIGARI,
AGE:8 YEARS, OCC:STUDENT,
R/O: BUDIHAL, TQ:RON,
DIST: GADAG.582 209

5. KUMARI. VEERAMMA D/O VEERESH CHIGARI,
AGE:5 YEARS, OCC:STUDENT,
2

R/O: BUDIHAL, TQ:RON,582 209
DIST: GADAG.

(RESPONDENT NO. 1 TO 5 ARE
MINORS REPRESENTED BY
THEIR NATURAL MOTHER,
I.E., RESPONDENT NO. 6)

6. SMT.UMA W/O VEERESH CHIGARI,
AGE:39 YEARS, OCC:HOUSEHOLD WORK,
R/O: BUDIHAL, TQ:RON,582 209
DIST: GADAG.

7. VEERESH S/O GIRIYAPPA CHIGARI,
AGE:51 YEARS, OCC:AGRICULTURE,
R/O: BUDIHAL, TQ:RON,
DIST: GADAG.582 209

8. UDHISTIR S/O GIRIYAPPA CHIGARI,
AGE:46 YEARS, OCC:AGRICULTURE,
R/O: BUDIHAL, TQ:RON,582 209
DIST: GADAG.
…RESPONDENTS

THIS APPEAL IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 07.02.2015
PASSED IN R.A.NO.11/2014 ON THE FILE OF THE SENIOR CIVIL
JUDGE RON, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 12.02.2014 AND THE DECREE
PASSED IN O.S.NO.57/2012 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RON,
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT

This appeal arises against the judgment and decree

passed by the Senior Civil Judge, Ron (henceforth for

brevity referred to as ‘the lower appellate Court’) in

R.A.No.11/2014 dated 07.02.2015 whereby the judgment

and decree passed by the Principal Civil Judge and JMFC,

Ron (‘trial Court’ for short) in O.S.No.57/2012 is

confirmed, dismissing the appeal filed by the appellant.

2. For the sake of convenience, the parties are

referred to as per their status before the trial court.

3. The plaintiffs have instituted a suit in

O.S.No.57/2012 against the defendants seeking for the

relief of partition and separate possession of their share in

the suit properties by metes and bounds and for other

reliefs. Plaintiff Nos.1 to 5 are the children of defendant

No.3 and plaintiff No.6 is the wife of defendant No.3.

Defendant No.4 is the brother of defendant No.3.
4

Defendant No.2 is the Sales Officer of the Co-operative

Society, Gadag.

4. The plaint averments are that, defendant No.3

has deserted the plaintiffs and living at Hubballi

separately. The plaintiffs came to know about the

misappropriation committed by defendant No.3 in the

Society and for recovery of the said money, the Society has

given an application to enter its name in the suit

properties before the Thasildar and attempts were made to

alienate the suit properties in public auction. It was

contended that the transfer entry made by the Thasildar

does not create any right in favour of defendant No.1,

defendant No.3 alone is liable for payment of any

misappropriation amount and the same does not bind the

plaintiffs and their rights in the suit properties, as they

are ancestral joint family properties. It was averred that,

though the plaintiffs issued notice to defendant Nos.1 and

2 through registered post stating that they have got right
5

in the suit properties, defendant Nos.1 and 2 have neither

replied the notice nor considered the request of the

plaintiffs.

5. In response to the summons issued, defendant

Nos.1 and 4 appeared and filed written statement.

Defendant No.1 apart from denying the averments of the

plaint, specifically contended that the suit of the plaintiffs

is not maintainable, as plaintiffs have not issued 60 days

prior notice as required under Section 125 of the

Karnataka Co-Operative Societies Act, 1959 (henceforth

for brevity referred to as ‘the Act’). Defendant No.3 while

working as Secretary in the office of defendant No.1 has

committed misappropriation of funds. Hence, there was a

case against him before the Joint Registrar of Co-operative

Societies, Belgaum. In the said proceedings, the

misappropriation committed by defendant No.3 was

proved. Hence, an award was passed against him to forfeit

the properties of defendant No.3 and for that purpose,
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defendant No.2 was appointed as Sales Officer. Since

nobody participated in the auction of the suit property, it

was ordered to transfer the katha of the suit property in

favour of defendant No.1. Accordingly, the Thasildar has

transferred the suit property in the name of defendant

No.1. Defendant No.3 did not appeared before the Court.

Defendant No.4 appeared and contested the claim

contending that land in Sy.No.71/1 of Budihal village of

Ron taluk has been purchased by himself and defendant

No.3 jointly as per the original sale deed at Ex.D1 and the

land in Sy.No.150/2B of Budihal village of Ron taluk is

the ancestral property of himself and defendant No.3.

6. On the basis of the pleadings, seven issues

were framed by the trial Court. After appreciating the

material evidence on record, the suit of the plaintiffs was

decreed with costs holding that the plaintiffs are entitled

for 5/6th share in plaint ‘A’ schedule property and 5/12th

share in plaint ‘B’ schedule property. It was further
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declared that the share of the plaintiffs is not liable for

sale towards the liability of defendant No.3 to defendant

No.1-society. Being aggrieved, defendant No.1 preferred

R.A.No.11/2014 before the lower appellate Court, which

came to be dismissed confirming the judgment and decree

passed by the trial Court. Aggrieved by the same,

defendant No.1 is in second appeal.

7. The learned counsel Sri.Ravi S.Mattur

appearing for defendant No.1/appellant would contend

that the Courts below have failed to consider the material

aspect as regards issuance of prior notice as required

under Section 125 of the Act in the right perspective. It is

submitted that, on the date of filing of the instant suit, the

name of defendant No.1 has been entered by the

Thasildar, Ron. Insofar as the suit properties are

concerned, as per the order of the Joint Registrar of Co-

operative Societies, Belgaum in its order dated 08.03.2010

which is mutated in M.R.No.H26/2011-12. The said order
8

not being challenged, the plaintiffs preferring the partition

suit is wholly untenable. It is further contended that, by

virtue of filing the suit, the award passed against the

defendant No.3 has become inexecutable. The suit

property bearing Sy.No.150/2B had fallen to the share of

defendant No.3 in the partition and the property bearing

Sy.No.71/1 was purchased by defendant No.3 in the joint

name of defendant Nos.3 and 4. As such, the same has to

be considered while analyzing the partition suit filed by

the legal heirs of defendant No.3. Both the Courts below

have failed to consider the issue of maintainability of the

suit. The lower appellate Court dismissed the appeal

confirming the judgment and decree passed by the trial

Court, which is unjustifiable.

8. Having heard the learned counsel for the

appellant and perusing the material on record, it

envisages that the issue involved in this appeal is mainly

relating to issuance of prior notice as per Section 125 of
9

the Act. The trial Court in paragraph 13 of its judgment

has categorically observed that, in the cross-examination

of D.W.2, it has been clearly admitted that the plaintiffs

have issued notice and it has been served on them. This

finding of the trial Court is not disputed by the appellant.

When the notice has been issued and it is admitted by

defendant No.1, the trial Court as well as the lower

appellate Court were right in coming to the conclusion

that the plaintiffs have complied Section 125 of the Act

and on this ground the appellant cannot urge that suit is

not maintainable for non-compliance of the provisions of

Section 125 of the Act.

9. As regards Section 70 of the Act is concerned,

more particularly no dispute being raised by the plaintiffs

under Section 70 of the Act, it is apt to refer to Section 70

of the Act, which reads thus:

“70.Disputes which may be referred to
Registrar for decision.- (1) Notwithstanding
anything contained in any law for the time being
10

in force, if any dispute touching the constitution,
management, or the business of a co-operative
society arises.-

(a) among members, past members and
persons claiming through members,
past members and deceased members,
or

(b) between a member, past member or
person claiming through a member, past
member or deceased member and the
society, its board or any officer, agent or
employee of the society, or

(c) between the society or its (board) and
any past (board), any officer, agent or
employee, or any past officer, past
agent or past employee or the nominee,
heirs, or legal representatives of any
deceased officer, deceased agent, or
deceased employee of the society, or

(d) between the society and any other co-

operative society, or a credit agency.

such dispute shall be referred to the
Registrar for decision and [no Civil or Labour or
Revenue Court or Industrial Tribunal] shall have
jurisdiction to entertain any suit or other
proceeding in respect of such dispute.”

10. In terms of the said provision, if any dispute

touching constitution, management, or the business of a
11

co-operative society arises, among members, past

members and persons claiming through members, past

members and deceased members, or between a member,

past member or person claiming through a member, past

member or deceased member and the society, its board or

any officer, agent or employee of the society, which is

relevant for the purpose of the present case, such dispute

shall be referred to the Registrar for decision, no Civil or

Labour or Revenue Court or Industrial Tribunal shall have

jurisdiction to entertain any suit or proceeding in respect

of such dispute.

11. Admittedly, the plaintiffs herein are not the

members, past members and persons claiming through

members, past members and deceased members,

inasmuch as their share in the ancestral joint family

properties. The plaintiffs are not claiming their rights

through defendant No.3, their rights are independent.

Such being the position, the arguments of the appellant as
12

regards not challenging the order passed under Section 70

of the Act by the plaintiffs is wholly misconceived. Further,

on appreciation of material evidence, both the Courts

below have given a concurrent finding that the land

bearing Sy.No.71/1 is the joint family property and land

bearing Sy.No.150/2B is the ancestral property of the

parties. In such circumstances, the plaintiffs are entitled

for partition in the suit schedule properties and their

share is accordingly determined by the Courts below. In

the circumstances, this Court do not find any infirmity or

irregularity in the judgment and decree of the Courts

below. No substantial question of law arises for

consideration. In the result, appeal stands dismissed.

In view of dismissal of the appeal, all pending I.A’s

are consigned to file.

(Sd/-)
JUDGE
MBS/-

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