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:
3
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,
6
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
7
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
10in 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
11co-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/-
