- 1 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 2750 OF 2010 (RES) BETWEEN: RAVI, S/O MUNIYAPPA, AGED ABOUT 33 YEARS, R/O I CROSS, J.C. NAGAR, SHIVAMOGGA - 577 201. …APPELLANT (BY SRI R.V. JAYAPRAKASH, ADVOCATE) AND: 1. 1(a) KANNAPPA, S/O CHINNARANGAPPA, DEAD BY HIS LRS SMT. SHARADAMMA W/O KANNAPPA, AGED ABOUT 72 YEARS 1(b) SMT. INDRANI, D/O KANNAPPA AGED ABOUT 40 YEARS, 1(c) SMT. MALATI, D/O KANNAPPA AGED ABOUT 37 YEARS, 1(d) SMT. PUSHPA, D/O KANNAPPA, AGED ABOUT 35 YEARS, 1(e) RAJU, S/O KANNAPPA, AGED ABOUT 33 YEARS, Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka - 2 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 ALL ARE R/A HALKOLA, SAGAR ROAD, SHIVAMOGGA CITY - 577 201. 2. 2(a) SEETHAMMA, W/O LATE MUNIYAPPA, DEAD BY LRS SMT SUNANDA, W/O VENKATESH, AGED ABOUT 40 YEARS, R/O MATTUR, SHIVAMOGGA TALUK-577 201. 2(b) M SUDHA AGED ABOUT 30 YEARS W/O MANOHAR R/O BALEBYLU, THIRTHAHALLI TALUK-577 301. 2(c) SUSHEELA, W/O GOPI, AGED ABOUT 36 YEARS, R/O HULIMAVUBANGALORE 3. M VENKATESH, S/O LATE MUNIYAPPA AGED ABOUT 53 YEARS OCC: BARBAR, R/O MARNAVAMI BYLU, SHIVAMOGGA CITY - 577 201. …RESPONDENTS [BY SRI D.C. JAGADEESH, ADVOCATE FOR R1(a-e); V/O DATED 07.09.2022 R1(b-e) ARE THE LRs OF R1(a); V/O DATED 19.11.2013 NOTICE TO R2(C) & 3 D/W; R2(a) & (b) SERVED] THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 13.8.2010 PASSED IN R.A.NO.212/2004 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-III, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE - 3 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 DATED 2.8.2000 PASSED IN O.S.NO.434/93 ON THE FILE OF THE I ADDL. CIVIL JUDGE (JR.DN) SHIMOGA. THIS APPEAL, COMING ON FOR CONTINUATION OF DICTATION HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI ORAL JUDGMENT Challenging judgment and decree dated 13.08.2010 passed by Presiding Officer, Fast Track Court-III, Shivamogga, in R.A.no.212/2004 and judgment and decree dated 02.08.2000 passed by I Additional Civil Judge (Jr.Dn.) Shimoga, in O.S.no.434/1993, this appeal is filed. 2. Brief facts as stated are that O.S.no.434/1993 was filed by Smt.Seethamma wife of late Muniyappa and Sri M. Venkathesh son of late Muniyappa stating that Muniyappa during his life time had purchased a Mangalore Tiled House consisting of three residential houses, three bathrooms and one latrine bearing Municipal no.1009/1121/1026 situated at Marnavamibyle, 1st Cross, Shimoga City (for short 'Suit Property') under registered sale deed dated 24.03.1958 from Rajappa son of Bhajanthri Krishnappa Tarikere. - 4 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 In plaint, it was stated that purchase of suit property was by Muniyappa on his own. It was further stated Muniyappa had married plaintiff no.1 - Smt.Seethamma and had five children namely Sunanda, Sudha, Susheela, Ravi including plaintiff no.2. After death of Muniyappa on 02.02.1988, his legal representatives succeeded to same and khata of suit property was mutated in name of plaintiff no.1 - Smt.Seethamma. It was further stated that defendant - Kannappa was one of brothers of Muniyappa, he was permitted to reside in one portion of suit property measuring 13 ft. X 12 ft. with one bathroom as licensee during life time of Muniyappa. After death of Muniyappa, when plaintiffs demanded defendant to vacate and handover premises, he refused. To resolve dispute, a panchayath was convened on 15.05.1989, wherein defendant agreed to vacate and deliver vacant possession of premises to plaintiffs within three years i.e. on or before 15.05.1992. Since defendant did not vacate premises even on said agreed date, plaintiffs filed suit for possession and for mesne profits. On appearance, defendant filed written statement denying plaintiffs claim. It was stated, Muniyappa along with defendant - Kannappa and three other brothers constituted a - 5 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 joint family and that suit property was joint family property. Therefore, plaintiffs were not entitled for possession. Their claim that defendant was residing in portion of suit property as licensee was also denied. He claimed that as a member of joint family, he had 1/5th share in entire suit property and retained right to seek for partition and separate possession. 3. Based on pleadings, trial Court framed following: ISSUES 1) Whether the plaintiffs prove that they along with other children of Late Muniyappa are the owners of the suit schedule property by inheritance? 2) Whether plaintiffs as co-owners of the suit schedule property are entitled to sue the defendant from possession of the same from him? 3) Whether the defendant proves that the suit is bad for non-joinder of necessary parties? 4) Whether the plaintiffs prove that the defendant has executed an agreement dated 15.05.1989 by which he promised to vacate and deliver vacant possession of the suit schedule property to the plaintiffs on or before 15.05.1992? 5) Whether the plaintiffs are entitled to decree for Rs.1,100/- as damages for loss of rent calculated at the rate of Rs.100/- per month from 15.05.1992 to the date of suit treating the defendant's occupation of the suit property as that of a trespasser? - 6 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 6) Whether the defendant proves that the entire suit schedule building has been the joint family property of the defendant, his deceased brother Muniyappa and other brothers Channappa, Buddappa and Muniswamy and that he has 1/5th share in the same? 7) Whether the plaintiffs are entitled to recover possession of the suit schedule property from the defendant? 8) Whether the plaintiffs are entitled to future mesne profits? 9) For what order and decree? ADDITIONAL ISSUE 1) Whether the defendant proves that he is residing in the suit schedule property from the beginning in his own right and adverse to the interest of the plaintiffs as contended in para 8 of the written statement? [ 4. In trial, plaintiff no.1 examined herself as PW.1 and one of panchayatdars as P.W.2 and got marked Exs.P1 to P13. On other hand, defendant examined himself and two others as DWs.1 to 3 and got marked Exs.D1 to D5. 5. On consideration, trial Court answered issues no.1, 2, 5, 7, 8 and additional issue no.1 in negative; issues no.3, 4 and 6 in affirmative and issue no.9 by dismissing suit. - 7 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 6. Aggrieved plaintiffs filed RA.no.212/2004 on various grounds. During pendency of appeal, plaintiff no.1 - Smt.Seethamma died and her children were brought on record. 7. Based on contentions urged, first appellate Court framed following points for its consideration: 1) Whether the plaintiffs proved that, they are the absolute owners of the plaint schedule property by inheritance? 2) Whether the plaintiffs further proved that, defendants are in permissive possession of plaint schedule property? 3) Whether the plaintiffs further proved that, they are entitle for possession of the plaint schedule property from the defendant? 4) Whether the plaintiffs further proved that, defendant executed an agreement dated 15.05.1989 agreeing to vacate and hand over vacant possession of plaint schedule property on or before 15.05.1992? 5) Whether the plaintiffs are entitle for damages towards loss of rent at the rate of Rs.100/- per month from 15.05.1992 to the date of filing of the suit? 6) Whether the plaintiffs are entitle for mesne profits as prayed? 7) Whether the defendants proved that, the plaint schedule property is the joint family property of deceased Muniyappa, defendant and their three - 8 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 brothers in which defendant has got 1/5th share as claimed? 8) Whether the defendants further proved that, suit is bad for non-joinder of necessary parties? 9) Whether the defendants further proved that, they are in possession of the plaint schedule property in their own right and adverse to the interest of the plaintiffs as contended in written statement at para 8? 10) Whether the Judgment and Decree of the Trial Court calls for interference by this Court? 11) What Decree or Order? 8. On consideration, it answered points no.1 to 3, 5, 6, 9 and 10 in negative; points no.4, 7 and 8 in affirmative and point no.11 by dismissing appeal. Against concurrent findings, plaintiff is in second appeal. 9. Sri R.V. Jayaprakash, learned counsel for plaintiffs submitted that when plaintiffs filed suit for possession and for damages claim on suit property under Ex.P1 - sale deed and Ex.P6 - panchayath agreement, merely on ground that defendant had pleaded suit property to be joint family property, trial Court and first appellate Court erroneously placed burden of establishing suit property as self acquired property of - 9 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 plaintiff's no.1 husband Muniyappa on plaintiffs and without proper appreciation of material available dismissed suit. 10. Relying decision of Hon'ble Supreme Court in case of D.S. Lakshmaiah and Anr. v. L. Balasubranyam and Anr., reported in 2003 (10) SCC 310, learned counsel contended that whether property was joint family property was required to be established by person asserting it to be so. Therefore, placing burden on plaintiffs was contrary to law. 11. It was submitted, when contents of Ex.P1 clearly established suit property was purchased exclusively in name of Muniyappa and when plaintiffs examined scribe/pancha of Ex.P6, wherein defendant had agreed to vacate suit property on or before 15.05.1992, dismissal of suit would be without proper appreciation of relevant material on record and as such perverse. Therefore, learned counsel prayed for answering substantial question of law framed in favour of appellant and to allow appeal. 12. On other hand, Sri D.C. Jagadeesh, learned counsel for respondents no.1 (b to e)] opposed appeal. It was submitted, appeal was against concurrent findings and there - 10 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 was no scope for interference. It was submitted, suit property was not self acquired property of Muniyappa and that all his brothers had contributed funds for its purchase. It was submitted, Muniyappa was eldest among brothers and was manager of joint family and therefore, suit property was purchased in his name. It was further submitted there were other joint family properties not included and as such, suit was not tenable. 13. It was further submitted, in deposition of PW.1, it was elicited that Muniyappa was eldest brother and that he was looking after affairs of family when they were together and that brothers used to handover their earnings to him. It was also elicited that there was no partition in family and even in respect of house in Madras, there was no partition. Attention was drawn to suggestion made that suit property was purchased out of funds of joint family. It was submitted, DW.1 in his deposition had stated that even prior to 1958, defendant was residing in suit property and that all other brothers had contributed money for purchase of suit property. 14. It was submitted, while passing impugned judgment and decree, trial Court had framed issues and specifically held - 11 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 that suit property was joint family property and plaintiffs were not entitled for possession. First appellate Court had concurred with said finding on re-appreciation and adverting to material as stated above. It was submitted, findings of both Courts being concurrent and that no substantial question of law would arise for consideration and sought dismissal of appeal by answering substantial question of law framed against appellant. 15. Heard learned counsel, perused impugned judgment and decree and record. 16. This appeal is by legal representative of plaintiff no.1 in suit for possession and mesne profits. Suit claim of plaintiffs was based on assertion that plaintiff no.1 was wife of Muniyappa and plaintiff no.2 was his son. Muniyappa had purchased suit property under Ex.P1 - registered sale deed dated 24.03.1958. Said property comprised of several portions. Since defendant required a place for residence, a portion of same was permitted to be occupied by him. Even during his life time, Muniyappa had called upon defendant to vacate premises. And that Muniyappa died on 02.02.1988. Therefore, plaintiffs inherited suit property and khata was changed in name of plaintiff no.1 being his wife. Further, when defendant did not - 12 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 vacate, a panchayat was convened on 15.05.1989 wherein before panchayatdars, defendant agreed to vacate and deliver vacant possession of suit premises to plaintiffs within three years ending on 15.05.1992. However, even after expiry of said date, when defendant did not vacate, plaintiffs got issued legal notice and thereafter filed suit. 17. Defendant opposed suit by denying plaintiffs' claim that suit property was self acquired property of Muniyappa and claiming it to be joint family property wherein he had 1/5th share. During trial, plaintiff no.1 examined herself as PW.1 and deposed in terms of plaint. During cross-examination, it is elicited that Muniyappa was eldest among five siblings, that he was managing affairs of family while they were together and they used to handover their income to him. It was also elicited that there was a house belonging to family in Madras and there was no partition between brothers. 18. In her evidence, PW.1 produced sale deed for purchase of suit property as Ex.P1, Municipal endorsement, khata extract, demand register extract, tax paid receipt as Exs.P2 to P5. Agreement before panchayatdars as Ex.P6 and identified signatures on it as Exs.P6 (a to c), notices, reply and - 13 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 acknowledgment as Exs.P7 to P13. To corroborate Ex.P6, plaintiff no.1 examined its scribe as PW.2. He deposed about purchase of suit property by Muniyappa, portion being permitted to be occupied by defendant, arising of dispute, convening of panchayat including him and about parties coming to agreement as per Ex.P6. He also specifically stated that defendant had agreed to vacate suit premises on or before 15.05.1992. 19. On other hand, defendant examined himself as DW.1. In his deposition, he stated that Muniyappa had four siblings who were residing together for some time, where Muniyappa was managing affairs of family. He also deposed about purchase of suit property in name of Muniyappa and about existence of other properties of joint family at Madras and Parangapally. He also deposed that there was no partition among Muniyappa and his siblings. 20. While passing impugned judgment and decree, trial Court after adverting to rival pleadings, evidence and contentions, firstly observed that there was no recital in Exs.P1 to P3 that suit property was purchased for and on behalf of joint family. It referred to admission elicited in cross- - 14 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 examination of PW.1 about Muniyappa managing affairs of joint family while they were together and about pooling income by brothers. Based on same and admission that there was no partition between Muniyappa and his brothers and failure of plaintiffs to establish that Muniyappa had sufficient source of income for purchase of suit property, held plaintiffs had failed to establish suit property as self acquired property and dismissed suit. 21. In appeal, first appellate Court observed that in Ex.P9 - legal notice, defendant was shown to be a tenant under Muniyappa on monthly rent of Rs.100/- and Ex.P11 - reply notice, wherein defendant had claimed that suit property was joint family property purchased out of joint family funds and construction put up by all brothers. Thereafter, it referred to admission about Muniyappa being eldest son of joint family as shown in Ex.D5 - genealogical tree. It held as there was no partition between Muniyappa and his brothers and observing there was strong presumption in favour of property being joint family property and burden lying on plaintiffs to show that suit property was self acquired property, it held plaintiffs had failed - 15 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 to establish same with cogent material, concurred with findings of trial Court and dismissed appeal. 22. This appeal was admitted on 18.01.2014 to consider following substantial question of law. "In a suit for recovery of possession based upon a self-acquisition under a registered deed of sale dated 24.03.1958, the defendant having advanced a plea that suit schedule property was joint family property, whether courts-below were justified in observing that it was for plaintiff to prove self-acquisition, in other words the existence of joint family leads to a presumption that properties held by a member of the joint family is a joint family property, to conclude that plaintiff has failed to establish that suit schedule property was the self-acquisition of husband of plaintiff and father of the second plaintiff?" 23. Admittedly, suit is for possession and mesne profits, wherein plaintiffs established title based on Ex.P1 - sale deed corroborated by revenue entries etc. In such suit, defendant contended about existence of joint family comprised of Muniyappa and his brothers and about existence of other joint family properties in Madras and Parangapally. Though, in a suit for partition, wherein plaintiffs establish existence of joint family and joint family properties, burden to establish property as self acquired property would be on person asserting same. - 16 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 Admittedly, there is no prayer for partition in present case. Defendant did not seek for counter claim of partition, though, defendant raised plea that suit property was joint family property. 24. Even in pleadings there are absolutely no particulars about quantum of income of each of brothers so as to constitute sufficient corpus for purchase of suit property. In absence of pleadings no amount of evidence can be appreciated on this aspect. As held by Hon'ble Supreme Court in case of D.S. Lakshmaiah's case (supra), burden would be on person who asserts existence of joint family and asserting any property to be joint family property. In view of said legal position, placing of burden on plaintiffs to establish that suit property was self acquired property of Muniyappa would be contrary to law. 25. In any case, as noted by both Courts there is no recital in Ex.P1 - sale deed about purchased being for and on behalf of joint family or from funds of joint family. It is also legal position that even in case of joint family, there is no bar against any member holding separate property. Ex.P1 admittedly indicates purchase of property in sole name of - 17 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 Muniyappa. It is also seen that defendant had raised plea of acquisition of title over suit property by adverse possession addressed by trial Court as additional issue no.1. It is settled legal principle that raising of plea of adverse possession amounts to admission of plaintiffs' title. Infact, plea of adverse possession would not only contradictory, but, destructive plea of joint family status. 26. Hon'ble Supreme Court in Steel Authority of India Ltd. v. Union of India and Ors., reported in 2006 (12) SCC 233 and decision of this Court in Narayan S Kurdekar v. Dawal Sab (Dead) By LRs., reported in ILR 2017 Kar. 3505, held mutually destructive would result in rejection of entire plea of defendant especially as in instant case, defendant did not exercise option prior to commencement of trial. 27. In light of above, both Courts have gravely erred in treating suit for possession as one for partition, casting burden on plaintiffs to establish nature of suit property as self acquired property and secondly in holding that suit property was joint family property without acceptable evidence and ignoring mutually destructive pleas. As such, impugned judgment and - 18 - NC: 2025:KHC:17761 RSA No. 2750 of 2010 decree passed by both Courts would suffer from perversity and call for interference. Hence, substantial question of law is answered in favour of appellant. 28. Consequently, following: ORDER Appeal is allowed. Impugned judgment and decree dated 13.08.2010 passed by Presiding Officer, Fast Track Court-III, Shivamogga, in R.A.no.212/2004 and judgment and decree dated 02.08.2000 passed by I Additional Civil Judge (Jr.Dn.) Shimoga, in O.S.no.434/1993 are set- aside. Plaintiffs suit is decreed. Defendant is directed to quit, vacate and deliver vacant possession of plaint suit property to plaintiffs on or before 31.12.2025. Mesne profits to be worked out in separate proceedings under Order XXI Rule 18 of CPC. SD/- (RAVI V HOSMANI) JUDGE GRD List No.: 1 Sl No.: 41