- 1 - HC-KAR NC: 2025:KHC:33150 RSA No. 177 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO.177 OF 2020 (PAR) BETWEEN: PARAMA NAIKA S/o LATE LINGAAIKA AGED ABOUT 89 YEARS, RESIDING AT DINDA KARUNAPURA POST THIRTHAHALLI TALUK SHIMOGA DISTRICT-577448 …APPELLANT (BY SRI S.S.PARIKSHIT, ADVOCATE) AND: 1. SUSHEELAMMA W/o LATE DUGGA NAIKA AGED ABOUT 62 YEARS, RESIDING AT DINDA KARUNAPURA POST THIRTHAHALLI TALUK SHIMGOA DISTRICT-577 448 2. ANNAPOORNA D D W/o LATE UMESH D/o LATE DUGGA NAIKA AGED ABOUT 35 YEARS, KARUNAPURA POST THIRTHAHALLI TALUK SHIMOGA DISTRICT-577 4484 3. ANITHA D D W/o VENKATESHA G Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33150 RSA No. 177 of 2020 AGED ABOUT 33 YEARS, RESIDING AT DINDA KARUNAPURA POST THIRTHAHALLI TALUK SHIMOGA DISTRICT-5774484 4. REKHA D D D/o DUGGA MAIKA AGED ABOUT 28 YEARS, RESIDING AT DINDA KARUNAPURA POST THIRTHAHALLI TALUK SHIMOGA DISTRICT-5774484 …RESPONDENTS (BY SRI DILIP D FOR SRI PRASANNA.D.P, ADVOCATES FOR R1 TO R4) THIS RSA IS FILED UNDER SECTION 100 OF CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE DATED 19.10.2019 PASSED IN R.A.No.45/2016 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, SHIVAMOGGA DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 26.09.2016 PASSED IN O.S.No.8/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, THIRTHAHALLI. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 3 - HC-KAR NC: 2025:KHC:33150 RSA No. 177 of 2020 ORAL JUDGMENT Heard Sri S.S. Parikshit, learned counsel for the appellant and Sri Dilip D., appearing on behalf of Sri Prasanna D.P., counsel for respondent Nos.1 to 4. Sri Parama Naika, defendant in O.S.No.180/2005 renumbered as O.S.No.8/2014 is the appellant in this second appeal. 2. Facts in the nutshell for disposal of the present appeal are as under. 2.1. A suit came to be filed by the plaintiff claiming that defendant is his brother and both of them were born to Linga Naika. It is contended that Linga Naika was cultivating the agricultural lands belonging to Beemanakatte Mutt as a tenant. After the Land Reforms Act came into force, application under Form No.7 was filed and property in ‘A’ schedule came to be granted to the defendant as head of the family as per the order dated 25.08.1977. However, there was no partition that was effected in respect of the same. But ‘B’ schedule house - 4 - HC-KAR NC: 2025:KHC:33150 RSA No. 177 of 2020 property was transferred to a stranger by name Siddamma W/o Sidda Naika. 3. It is further contended that plaintiff and defendant are residing separately for the sake of convenience. But properties remained as joint properties and thereafter there was a demand for partition of the ‘A’ schedule property which was refused. Therefore, suit for partition and separate partition came to be filed. 4. Pursuant to the suit summons, defendant entered appearance and denied the plaint averments in toto. 5. Learned trial Judge after raising necessary issues decreed the suit of the plaintiff and granted half share in the ‘A’ schedule property and his prayer for partition of ‘B’ schedule property was rejected. 6. Being aggrieved by the same, defendant filed an appeal before the District Judge, Shivamogga in R.A.No.45/2016. 7. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and - 5 - HC-KAR NC: 2025:KHC:33150 RSA No. 177 of 2020 on re-appreciation of the material on record, both on legal issues and factual aspects, dismissed the appeal by holding that Form No.7 in respect of ‘A’ schedule property is for and on behalf of the joint family property and plaintiff is entitled for half share in the ‘A’ schedule property and dismissed the appeal of the defendant. 8. Being further aggrieved by the same, defendant before this Court in the second appeal on the following grounds and substantial questions of law.  The courts below were not right in completely basing the judgment on Ex P3, particularly when the Column on which the judgment is based upon is "Period for which the Applicant has been cultivating the land as tenant". So, mentioning of the contents of that Column will not in any way go to show that the Suit 'A' Schedule Properties are ancestral properties and in this respect, the courts below have not considered very important documents which are Ex D1 and Ex D2, which clearly establish the fact that one Ramappa was the original genidar and the Defendant is the sub-genidar and based upon the name of the Defendant is to be found in all the revenue records up to the appointed dated, namely 01-03-1974.  The courts below failed to appreciate that based upon the entries in the revenue records, the order at Ex P4 is passed by the Land Tribunal, Thirthahalli.  The courts below failed to appreciate that PW1, who is the daughter of the Plaintiff, has been examined in the capacity of - 6 - HC-KAR NC: 2025:KHC:33150 RSA No. 177 of 2020 Power of Attorney Holder of the Plaintiff and in her cross examination, she clearly admits that there are no documents to show that Suit 'A' Schedule properties are ancestral properties.  The courts below failed to appreciate that in none of the documents, produced by the Plaintiff and Defendant, the name of Linga Naika (father of Plaintiff and Defendant) and Dugga Naika (Plaintiff) is to be found.  The courts below have not relied upon and have not even discussed any other documents produced by both the parties except Ex.P3.  The courts below have not appreciated the documents produced by the Plaintiff himself which clearly mentions the name of the Defendant only and that the grant is also made solely in the name of the Defendant.  The courts below fail to appreciate that the Plaintiff has not placed any material to show that the grant under Ex P4 is intended to be for the family of the Plaintiff and Defendant.  The courts below fail to appreciate that the Defendant has produced many documents which goes to show that the suit Schedule 'A Properties are in name of Ramappa Gowda and the Defendant.  The courts below failed to appreciate that even if the plain reading of Ex P3 is taken into consideration, it corresponds to the father of Mulagenidar, i.e. Ramappa Gowda and not to the father of the Plaintiff and Defendant.  The courts below failed to appreciate that the father of the parties had no property at all and therefore, there was absolutely no nucleus to show that suit 'A' Schedule properties are joint family properties.  The courts below failed to appreciate the cross examination of PW1, in which she admits that the father of Plaintiff was working - 7 - HC-KAR NC: 2025:KHC:33150 RSA No. 177 of 2020 as a coolie in different houses and therefore the question of the father of Plaintiff being the tenant in the Suit 'A' Schedule Properties does not arise at all.  The courts below failed to appreciate that the burden of proving that a particular property is joint family property lies upon the Plaintiff, which burden has not been discharged, particularly when there was no nucleus for the family.  The courts below failed to appreciate that originally, the revenue records in the cultivators column, stood in the name of Ramappa Gowda and subsequently in the name of both Ramappa Gowda and the Defendant. And after grant under Ex P4, the khata and pahani of the suit A' Schedule Properties are exclusively in the name of the Defendant, who has solely paid land revenue up to date.  The courts below, while rightly holding that the suit of the Plaintiff regarding '"B' Schedule Properties is liable to be dismissed, ought to have dismissed the suit in toto, even in respect of 'A' Schedule Properties.  The courts below have not properly appreciated important admissions in the cross examination of PW1. SUBSTANTIAL QUESTION OF LAW 1. Whether the courts below were right in holding that the Suit 'A’ Schedule Properties are joint family properties, particularly when there is no presumption regarding the properties being joint and such presumption cannot be drawn at all when, admittedly, there is no nucleus for the family? 2. Whether the courts below were right in decreeing the suit, particularly when there is no mention of the name of the father of the Plaintiff and also the name of the Plaintiff in any of the revenue records before Ex P4? - 8 - HC-KAR NC: 2025:KHC:33150 RSA No. 177 of 2020 3. Whether the courts below were right in decreeing the suit in respect of Suit ' A' Schedule Properties, when the order of grant in respect of Ex.P4 is solely in the name of the Defendant? 4. Whether the courts below were right in decreeing the suit when there is absolutely no material to show that the grant under Ex P4 is intended to be for the family ? 5. Whether the courts below were right in solely depending upon Ex P3, particularly when all other documents clearly establish that what is mentioned in the last column, corresponds to Ramapppa Gowda and not to the father of the Plaintiff?” 9. Sri S.S Parikshit, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that admittedly the order of the Land Tribunal is in favour of the defendant. 10. Therefore, it is the exclusive property of the defendant as he had filed the Form No.7 in respect of a subtenant as against the original owner namely, Beemanakatte Mutt. Therefore, it is the individual property of the defendant. 11. He also contended that the opinion recorded by both the Courts that though the order passed by the Land Tribunal dated 25.08.1977 is in the name of defendant, it is for the benefit of the joint family per se incorrect having regard to - 9 - HC-KAR NC: 2025:KHC:33150 RSA No. 177 of 2020 the fact that plaintiff or their father Linga Naika was not the tenant under the Bheemanakatte Mutt and it is the defendant who was subtenant in respect of the property as against the owner, Bheemanakatte Mutt. Therefore, decreeing the suit, granting half share to the plaintiff in the ‘A’ schedule property has resulted in miscarriage of justice and sought for admitting the appeal. 12. Per contra, Sri Dilip, appearing on behalf of Sri Prasanna D.P., supports the judgments. 13. Having heard the arguments of both sides, this Court perused the material on record meticulously. 14. On such perusal of the material on record, it is crystal clear that the order of the Land Tribunal marked before the Court below shows that it has been granted in the name of defendant. 15. But the result of enquiry and the material on record discloses that though it was granted in the name of defendant, it was for the benefit of the joint family. The proceedings before the Land Tribunal is marked at Ex.P4. - 10 - HC-KAR NC: 2025:KHC:33150 RSA No. 177 of 2020 16. On perusal of Ex.P4, it is crystal clear that no where it is mentioned that the defendant’s claim in respect of the ‘A’ schedule property absolutely claiming that he was the subtenant under the main tenant of Beemanakatte Mutt who was the owner of the property. 17. Revenue entries are no doubt mutated based on the order of the Land Tribunal. 18. Learned Judge in the trial Court taking note of the cross examination of D.W.1 and his witness, Thimmappa Gowda has recorded a categorical finding that though the order is in the name of defendant, it was granted for and on behalf of the joint family. 19. Learned Judge in the First Appellate Court rightly re-appreciated the legal and factual aspects of the matter and has upheld the judgment of the trial Court. 20. Relevant portion of the cross examination of D.W.1 is taken note of by both the Courts, wherein D.W.1 has admitted that the father of plaintiff and defendant namely Linga - 11 - HC-KAR NC: 2025:KHC:33150 RSA No. 177 of 2020 Naika had not given any application to the Land Tribunal for registering his name for occupancy rights. 21. He also admits that at the time of death of Linga Naika, he had separated away from the family and it is the plaintiff and their mother Siddamma were living together with Linga Naika. 22. Further, D.W.1 admitted that he was living in the house of Govinahalli Ramappa Gowda at the time of death of his father. 23. D.W.2 is a witness examined on behalf of the defendant. In his cross examination, he admits that he does not know the relationship between plaintiff and defendant. 24. He also admits that he is not aware of the name of the father of plaintiff and defendant. He admits that he is not a Bajudar of the suit ‘A’ schedule property. He admits that ‘A’ schedule property earlier belonged to Beemankette Mutt and he does not know who were all the tenants who were cultivating the land belonging to Beemankette Mutt. - 12 - HC-KAR NC: 2025:KHC:33150 RSA No. 177 of 2020 25. He also admits that he does not know what is the claim in the suit. He further admits that he has not instructed to file affidavit in lieu of examination-in-chief and he does not know the contents of his affidavit which is filed in lieu of his examination-in-chief. 26. In other words, evidence of D.W.2 did not improve the case of the defendant to any extent. But, it has acted detrimental to the interest of the defendant as well. 27. When the defendant had separated away from the family and was living in the house of Govinahalli Ramappa Gowda, expecting that he was cultivating the land which was originally cultivated by their father Linga Naika, cannot be countenanced in law. 28. Anyway, since there was no claim by the plaintiff that the entire property should fall to him on the ground of ouster or defendant leaving away from the family, granting of half share in the ‘A’ schedule property by the trial Court confirmed by the First Appellate Court is thus just and proper which requires no further interference by admitting the appeal on the aforesaid substantial questions of law. - 13 - HC-KAR NC: 2025:KHC:33150 RSA No. 177 of 2020 Accordingly, the following: ORDER Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE MR