- 1 - NC: 2025:KHC-D:4278 RSA No. 3202 of 2007 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 5TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 3202 OF 2007 (PAR-) BETWEEN: TAMMANNA S/O. HANUMANTHAPPA JEKINAKATTI @ WADDAR, AGE: 56 YEARS, OCC: AGRICULTURE, R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K. …APPELLANT (BY SRI. S.G. KADADAKATTI, ADVOCATE) AND: 1. SRI. SANNATAMMA S/O. HANUAMANTHA @ HANUMANTHAPPA JEKINAKATTI @ WADDAR, AGE: 46 YEARS, OCC: AGRICULTURE, R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K. 2. SRI. BALAPPA S/O. HANUAMANTHAPPA JEKINAKATTI, SINCE DECEASED BY HIS LR.S 2(A) HANUMAVVA W/O. BALAPPA JEKINAKATTI, AGE: 60 YEARS, OCC: AGRICULTURE, R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K. 2(B) HANUMANTAPPA S/O. BALAPPA JEKINAKATTI, AGE: 45 YEARS, OCC: AGRICULTURE, R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K. 2(C) ASHOK S/O. BALAPPA JEKINAKATTI, AGE: 40 YEARS, OCC: AGRICULTURE, R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K. Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.07 16:18:45 +0530 - 2 - NC: 2025:KHC-D:4278 RSA No. 3202 of 2007 3. SRI. SUNKA @ SUNKAPPA, S/O. HANUMANTHAPPA JEKINAKATTI, AGE: 57 YEARS, OCC: AGRICULTURE, R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K. 4. SRI. JAYAPPA S/O. HANUMANTHAPPA JEKINAKATTI, AGE: 54 YEARS, OCC: AGRICULTURE, R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K. 5. SRI. CHENNAPPA S/O. HANUMANTHAPPA JEKINAKATTI, AGE: 41 YEARS, OCC: AGRICULTURE, R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K. 6. SRI. MAHADEV S/O HANUMANTHAPPA JEKINAKATTI, AGE: 39 YEARS, OCC: SERVICE, R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K. 7. SRI. RAMANNA S/O. HANUMANTHAPPA JEKINAKATTI, AGE: 37 YEARS, OCC: AGRICULTURE, R/O. PALA VILLAGE, TQ: MUNDGOD, DIST: U.K. 8. SMT. RENUKA (HANUMAVVA), W/O. BHEEMAPPA HULLENAVAR, AGE: 45 YEARS, OCC: HOUSEHOLD, R/O. GODLA, PO: KUPPAKADDI, TQ: SIRSI, DIST: U.K. 9. SMT. HANUMAVVA W/O. HANUMANTHAPPA JEKINAKATTI, SINCE DECEASED BY HER LR’S APPELLANT AND RESPONDENT NO.1 TO 8 AND 10 10. SRI. FAKKIRAPPA S/O. HANUMANTH @ HANUMANTHAPPA JEKINAKATTI (WADDAR), SINCE DECEASED BY HIS LR’S. - 3 - NC: 2025:KHC-D:4278 RSA No. 3202 of 2007 10(A) MANJAPPA S/O. FAKKIRAPPA JEKINAKATTI (WADDAR) AGE: 32 YEARS, OCC: AGRICULTURE, R/O. PALA VILLAGE, NOW C/O. LAXMAPPA R/O. RAMAPUR, POST: PALA VILLAGE, TQ: MUNDAGOD, DIST: U.K. 10(B) AKKAMMA W/O. LAXMAPPA, AGE: 40 YEARS, OCC: HOUSEHOLD, R/O. RAMAPUR, POST: PALA VILLAGE, TQ: MUNDAGOD, DIST: U.K. …RESPONDENTS (BY SRI. DINESH M. KULKARNI, ADVOCATE FOR R1-R7; R2(A)-R2(C), R8, R10(A & B) ARE SERVED & UNREPRESENTED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 12.11.2007 PASSED BY THE CIVIL JUDGE (SR. DN) YELLAPUR IN R.A.NO.05/2007 BY REVERSING THE JUDGMENT AND DECREE PASSED BY THE LEARNED CIVIL JUDGE (JR.DN.) MUNDAGOD DATED 24.11.2006 PASSED IN O.S.NO.33/2004 AND ETC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is filed by the defendant No.1 challenging the judgment and decree dated 12.11.2007 passed in RA No.5 of 2007 on the file of the Civil Judge (Sr.Dn.), Yellapura. Uttara Kannada, allowing the appeal and modifying the judgment and decree dated 24.11.2006 passed in OS No.33 of 2004 - 4 - NC: 2025:KHC-D:4278 RSA No. 3202 of 2007 on the file of the Civil Judge, (Jr. Dn.), Mundgod, dismissing the suit of the plaintiff. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court. 3. The plaint averments are that, the plaintiff and defendant Nos.1 to 8 are the sons and daughter of one Hanumantha @ Hanumanthappa Jekinakatti, @ Waddar and Hanumavva (Defendant No.9). It is stated in the plaint that, father of plaintiff-Hanumanthappa was cultivating the land bearing Sy.No.191 at Palla Village, Mundgod Taluk, since 1948. It is also stated that, Hanumanthappa died on 06.09.1971 leaving behind the plaintiff and defendant Nos. 1 to 9 as his legal representatives and thereafter, the mutation entry was changed in favour of defendant No.1 as a Kartha of the joint family. It is also stated that, the Land Tribunal vide order dated 22.12.1975 granted - 5 - NC: 2025:KHC-D:4278 RSA No. 3202 of 2007 occupancy rights in respect of subject land to the defendant No.1 as the defendant No.1 filed an application in Form No.VII. Schedule ‘B’ property is the non-agricultural family property and as such, it is the case of the plaintiff that, the suit schedule properties are the joint family properties of late Hanumanthapp and plaintiff and defendant Nos. 1 to 9 being the legal representatives, are entitled for share in the joint family properties. Accordingly, plaintiff sought for partition and separate possession in OS No.33 of 2004 on the file of the Trial Court. 4. After service of summons, the defendant Nos.1 to 7 entered appearance and defendant Nos. 2, 5 to 7 filed separate written statement denying the averments made in the plaint, however, admitted the relationship with the plaintiff. Defendant No.4 has filed memo adopting the written statement filed by defendant Nos.2 and 5 to 7. Defendant No.1 filed - 6 - NC: 2025:KHC-D:4278 RSA No. 3202 of 2007 separate written statement, denying the relief sought for in respect of the schedule property on the ground that, the schedule property was in cultivation of defendant No.1 and as such, he filed application seeking occupancy rights and therefore, the Land Tribunal has granted occupancy rights in favour of defendant No.1. Hence, defendant No.1 sought for dismissal of the suit insofar as schedule ‘A’ property. 5. Defendant No.3 entered appearance, however, he has not contested the matter. Defendant Nos. 8 to 10 placed ex-parte. 6. On the basis of the rival pleadings, the trial Court has formulated issues for its consideration. 7. In order to establish their case, plaintiff has examined herself as PW1 and got marked 14 documents as Exs.P1 to P14. On the other hand, - 7 - NC: 2025:KHC-D:4278 RSA No. 3202 of 2007 defendants examined three witnesses as DW1 to DW3 and produced 18 documents as Exs.D1 to D18. 8. The Trial Court, after considering the material on record, by its judgment and decree dated 24.11.2006 dismissed the suit of the plaintiff and being aggrieved by the same, the plaintiff has preferred Regular Appeal in RA No.5 of 2007 on the file of First Appellate Court and said appeal was resisted by the defendants. The First Appellate Court after re-appreciating the facts on record, by its judgment and decree dated 12.11.2007 allowed the appeal and modified the judgment and decree passed by the Trial Court in OS No.33 of 2004. Being aggrieved by the same, the defendant No.1 has preferred this Regular Second Appeal under Section 100 of CPC. 9. This Court, vide order dated 19.02.2009 formulated the following substantial question of law. - 8 - NC: 2025:KHC-D:4278 RSA No. 3202 of 2007 a. Whether the manner of consideration of the documents at Exs.P3, P4 and P5 by the Lower Appellate Court has led to its wrong conclusion that the properties in question are the joint family properties which are originally standing in the name of Shri. Hanumanthappa, w ho is the father of the parties ? b. Whether the Lower Appellate Court was justified in that background in coming to the conclusion that the properties allotted by the Land Tribunal by way of occupancy rights annured to the benefits of the joint family and as to whether there was joint family constitutes the plaintiff and the defendants ? 9. I have heard Sri. S.G. Kadadakatti, learned counsel for the appellant and Sri. Dinesh M. Kulkarni, learned counsel appearing for the respondent Nos. 1 to 7. 10. Sri S.G. Kadadakatti, learned counsel for the appellant submits that, the First Appellate Court has - 9 - NC: 2025:KHC-D:4278 RSA No. 3202 of 2007 committed an error in interfering with the finding recorded by the Trial Court despite the defendants have produced Exs.D12 and 15 which clearly establishes that, the appellant/defendant No.1 has repaid the arrears of loan taken from PLD Bank, Mudganod, and he further argued that the schedule ‘A’ property is the self acquired property of defendant No.1 and said aspect has not been considered by the First Appellate Court. Accordingly, he sought for interference of this Court. 11. Sri. Dinesh M. Kulkarni, learned counsel for the respondents submits that the father of the plaintiff and defendant No.1-Hanumanthappa was in cultivation of the land in question and he died on 06.09.1971 and therefore, Form No.VII was filed by defendant No.1 as the manager of the joint family and therefore, sought to justify the impugned judgment - 10 - NC: 2025:KHC-D:4278 RSA No. 3202 of 2007 and decree passed by the First Appellate Court. Accordingly, he sought for dismissal of the appeal. 12. Heard the learned counsel appearing for both the parties and perused the original records. On careful examination of the records would indicate that, the plaintiff and defendant Nos.1 to 8 are the children of Hanumanthappa and Hanumavva (defendant No.9). It is also forthcoming from the evidence on record that, the father of the plaintiff and defendant Nos.1 to 8 was in cultivation of the schedule ‘A’ property and he died on 06.09.1971. In that view of the matter, as the father of the plaintiff and defendant No.1- Hanumanthappa was in cultivation of the land in question and being protective tenant under the provisions of Karnataka Land Reforms Act and after the death of Hanumanthappa, (father of plaintiff and defendant Nos.1 to 8) on 06.09.1971, schedule ‘A’ property has to be considered as joint family property - 11 - NC: 2025:KHC-D:4278 RSA No. 3202 of 2007 of plaintiff and defendant Nos.1 to 9 and therefore, contentions raised by the defendant No.1 that, said property is the self acquired property of defendant No.1 cannot be accepted. In this regard, the Trial Court has committed an error in assessing the evidence of PW1 so also misconstrued the order passed by Land Tribunal. However, the same was rectified by the First Appellate Court, after re- appreciating the material on record as the father of the plaintiff and defendant Nos. to 8-Hanumanthappa was in cultivation of the land in question and in that view of the matter, father of the plaintiff and defendant Nos. 1 to 8 is to be considered as protected tenant as he was in cultivation of the schedule ‘A’ property since 1948. Therefore, argument advanced by the learned counsel appearing for the appellant cannot be accepted, in the light of judgment of this Court in the case of Veruppegowda vs. - 12 - NC: 2025:KHC-D:4278 RSA No. 3202 of 2007 Shankregowda reported in ILR 2009 KAR 1867. Be that as it may be, the defendant No.1 has raised plea of adverse possession in respect of the tenanted land and the said arguments cannot accepted on the ground that the said plea has not been sought against any persons muchless the land lord or the tenant. In that view of the matter, the substantial questions of law framed above favours the respondents (plaintiff and other contesting defendants) and accordingly, I pass the following: ORDER i) Regular Second Appeal is dismissed. ii) Judgment and decree dated 12.11.2007 passed in RA No.5 of 2007 on the file of the Civil Judge (Sr.Dn.), Yellapura, Uttara Kannada is hereby confirmed holding that the plaintiff and defendant Nos.1 to 8 are entitled - 13 - NC: 2025:KHC-D:4278 RSA No. 3202 of 2007 for 1/9th share each in the suit schedule property as the defendant No.9 is no more. iii) Judgment and decree dated 24.11.2006 passed in OS No.33 of 2004 on the file of the Civil Judge (Jr.Dn.), Mundgod, is hereby set aside. iv) The Suit is decreed holding that plaintiff and defendant Nos.1 to 8 are entitled for 1/9th share each in the suit schedule property as the defendant No.9 is no more. Sd/- (E.S.INDIRESH) JUDGE SB CT-MCK List No.: 1 Sl No.: 36