- 1 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3RD DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO. 100243 OF 2019 (PAR/POS) BETWEEN: 1. SHRI. IRAPPA BASAVANNI KAMATE AGE: 46 YEARS, OCC: AGRICULTURE, R/O. NINGYANATTI (SHIVAPUR), POST: KURIHAL, TAL. AND DIST. BELAGAVI, PIN CODE:591143. 2. SHRI. KEMPANNA BASAVANNI KAMATE AGE: 42 YEARS, OCC: AGRICULTURE, R/O. NINGYANATTI (SHIVAPUR), POST: KURIHAL, TAL. AND DIST. BELAGAVI, PIN CODE:591143. 3. SMT. AKKAWWA W/O. BASAVANNI KAMATE AGE: 64 YEARS, OCC: AGRICULTURE, R/O. NINGYANATTI (SHIVAPUR), POST: KURIHAL, TAL. AND DIST. BELAGAVI, PIN CODE:591143. 4. SMT. PARAWWA W/O. MARUTI HUDEDAR AGE: 38 YEARS, OCC: AGRICULTURE, R/O. NINGYANATTI (SHIVAPUR), POST: KURIHAL, TAL. AND DIST. BELAGAVI, PIN CODE:591143. …APPELLANTS (BY SRI. SANJAY S. KATAGERI, ADVOCATE) MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA Date: 2025.03.22 15:57:10 +0530 - 2 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 AND: 1. SHRI. GURUSIDDA APRAJ KAMATE AGE: 64 YEARS, OCC: AGRICULTURE, R/O. NINGYANATTI (SHIVAPUR), POST: KURIHAL, TAL. AND DIST. BELAGAVI, PIN CODE:591143. 2. SHRI. SIDDAPPA CHANNAPPA KAMATE AGE: 71 YEARS, OCC: AGRICULTURE, R/O. NINGYANATTI (SHIVAPUR), POST: KURIHAL, TAL. AND DIST. BELAGAVI, PIN CODE:591143. 3. SHRI. SHIVAMURTHI GIRIMALLA KAMATE AGE: 69 YEARS, OCC: AGRICULTURE, R/O. NINGYANATTI (SHIVAPUR), POST: KURIHAL, TAL. AND DIST. BELAGAVI, PIN CODE:591143. 4. SHRI. BASAVANNI BHARAMA KAMATE AGE: 59 YEARS, OCC: AGRICULTURE, R/O. NINGYANATTI (SHIVAPUR), POST: KURIHAL, TAL. AND DIST. BELAGAVI, PIN CODE:591143. 5. SHRI. MALLAPPA BHARAMA KAMATE AGE: 56 YEARS, OCC: AGRICULTURE, R/O. NINGYANATTI (SHIVAPUR), POST: KURIHAL, TAL. AND DIST. BELAGAVI, PIN CODE:591143. 6. SHRI. BALAPPA MALLAPPA KAMATE AGE: 56 YEARS, OCC: AGRICULTURE, - 3 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 R/O. NINGYANATTI (SHIVAPUR), POST: KURIHAL, TAL. AND DIST. BELAGAVI, PIN CODE:5911430. 7. THE SPECIAL LAND ACQUISITION OFFICER HIDKAL DAM, TAL: HUKKERI, DIST: BELAGAVI, PIN CODE: 591309. 8. THE EXECUTIVE ENGINEER KNNL, GRBC DIV.II, HIDKAL DAM, TAL: HUKKERI, DIST: BELAGAVI, PIN CODE:591309. …RESPONDENTS (BY SMT. SUNANDA P. PATIL, ADVOCATE FOR C/R2 AND R3; NOTICE TO R1, R4 TO R8 ARE SERVED AND UNREPRESENTED) THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.02.2019 PASSED IN O.S.NO.06/2015 BY THE LEARNED SENIOR CIVIL JUDGE AT HUKKERI, SITTING AT SANKESHWAR, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA - 4 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM) 1. The captioned appeal is by defendants No.2 to 5, who are assailing the Judgment and Decree rendered in O.S.No.6/2015, wherein the trial Court has decreed the suit filed by the plaintiffs thereby granting 1/5th share to the plaintiffs No.1 to 3 jointly and 1/5th share each to plaintiffs No.4 and 5. The preliminary decree drawn in O.S.No.6/2015 is under challenge. 2. For the sake of convenience, the parties are referred to as per their rank before the trial Court. 3. Before we delve into the matter, we deem it fit to cull out the family tree, which is as under : Shivarudra (died on 30.06.1983) Mallappa Apparai Channappa Girmalla Bharma (Died) (died) (died) (died) (died) Siddappa Shivamurti Basavanni Ballappa (Plff.2) (Plff.No.3) (D.1) Gurusidda Wife Akkavva (Plf.1) (D.4) Basavanni Mallappa (Plf.4) (Plf.5) Irappa Kempanna Paravva (D2) (D3) (D5) - 5 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 4. The facts leading to the case are as under: The plaintiffs’ represents the branch of Apparai; and Shivarudra is their propositus, who had five sons. Defendants’ represents the branch of Mallappa, who is the elder son of Shivarudra. 5. The plaintiffs have instituted the present suit seeking relief of partition and separate possession. Plaintiffs contended that one Shrivarudra Bharma Kamate @ Narashivagol, who is the propositus was cultivating the suit schedule lands as a tenant. Plaintiffs assert that these lands were originally owned by family of Sirdesai of Vantamuri village and plaintiffs’ and defendants’ ancestor Sri Shivarudra was cultivating these lands. Plaintiffs claimed that these lands were submerged in the backwater of Hidkal Reservoir project. Plaintiffs therefore claimed that they are entitled for their legitimate share in the suit schedule properties. 6. The defendants, who are representing the branch of Mallappa on receipt of summons have tendered their appearance and have contested the suit by filing written - 6 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 statement. Defendants, on the contrary, contended that these lands were cultivated by their father-Mallappa in his individual capacity and after grant of occupancy rights by the Land Tribunal, Sri Mallappa acquired absolute right. The defendants claimed that the present suit is not maintainable and is liable to be dismissed. Defendants also contended that their father Mallappa who also contested the proceedings after these lands were subjected to acquisition and a reference was also sought by Mallappa, after his death present defendants as his legal heirs have prosecuted the land acquisition proceedings and compensation was enhanced in terms of the order dated 13.08.2013 passed in LAC.No.68/2012. On these set of defence, defendants sought for dismissal of the suit. 7. The Trial Court having appreciated the oral and documentary evidence, answered issue Nos.1 to 4 in the affirmative. While answering issue No.1 it is held that plaintiffs have succeeded in substantiating the fact that the suit schedule properties are their joint family properties. Therefore, plaintiffs are entitled for their legitimate share in the suit schedule properties. The said Judgment is under challenge. - 7 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 8. Learned counsel for defendants reiterating the grounds urged in the appeal memorandum has vehemently argued and contended that the plaintiffs could not have maintained the present suit seeking relief of partition only in respect of tenanted land. Placing reliance on the Ex.D.11, learned counsel for the defendants vehemently argued and contended that Ex.D.11 clearly substantiate that these tenanted lands were allotted to Mallappa’s share and therefore occupancy rights granted to Mallappa will not enure to the benefit of plaintiffs. In the alternative, he vehemently argued and contended that plaintiffs cannot maintain this partition suit without including properties standing in their names as well. On these set of grounds, he would request this Court to grant indulgence and set aside the Judgment and Decree rendered by the trial Court in O.S.No.6/2015. Reliance is also placed on a reported Judgment of a co-ordinate Bench of this Court in the case of Sri Tukaram vs. Sri Sambhaji and Others reported in ILR 1998 KAR 681. 9. Per Contra, learned counsel for plaintiffs while contradicting the defendants counsel’s argument, takes this Court through crucial documents which are marked at Ex.P.18 - 8 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 to 21. Citing these crucial documents, she would point out that these documents clearly establish the fact that the original propositus Shivarudra was protected tenant over all these 3 lands. Further, referring to the relevant portion of the cross- examination of defendants, she has brought to our notice that after the death of propositus Shivarudra, defendants’ father- Mallappa being the eldest son was managing all the lands. This factual matrix would clinch the issue in regard to plaintiffs’ right to seek their respective legitimate share in all these 3 lands. Therefore, she has vehemently argued and contend that the Judgment rendered by the trial Court is based on clinching evidence produced by the plaintiffs and in absence of rebuttal evidence, therefore she requests for dismissal of the appeal. 10. We have heard the arguments of learned counsel for defendants and learned counsel for plaintiffs. We have given our anxious consideration on oral and documentary evidence let in by both defendants and plaintiffs. The following points would arise for our consideration : (i) Whether findings of the trial Court that the suit schedule properties are joint family ancestral - 9 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 properties of plaintiffs and defendants suffers from perversity? (ii) Whether the impugned Judgment rendered by the trial Court warrants interference at the hands of this Court? (iii) Whether defendants have made out a case to admit additional evidence on record? 11. Findings on points No.(i) and (ii) :- Plaintiffs have filed the present suit asserting that Shivadurda was the protected tenant of these 3 lands. Plaintiffs also contended that after the death of propositus Shivarudra, plaintiffs and defendants are inherited the tenancy of the lands and therefore they contend that these are joint family tenanted lands. While defendants on the contrary had come up with specific pleadings indicating that these lands were subjected to cultivation and their father-Mallappa was cultivating these lands in his individual capacity. Averments made in the written statement at paragraph Nos.17 to 20 would be relevant and therefore, we deem it fit to cull out the same, which read as under : - 10 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 “17. This defendant having traversed the allegations in the plaint specifically begs to submit that the father of this defendant, namely, Mallappa was alone the tenant of the suit lands and he took the lands on lease in his individual capacity and not as member of the joint family. The lease is for the first time taken by the said Mallappa. Shivarudra was not concerned to the suit lands. Mallappa has made necessary application in Form No. VII for the grant of the occupancy rights and the Land Tribunal, Hukkeri has granted the Occupancy rights in favour of the said Mallappa under its Order dated 28.12.1976 in INCSR 6200. The Form No.10 is also issued in his name. After the death of the said Mallappa, his legal heirs are the owners exclusively. 18. It is submitted that the plaintiffs or their ancestors have no right, title and interest over the suit lands and therefore, have no share either in the suit lands or the compensation. 19. The suit lands are acquired by the Government. The said Mallappa has made application for the enhancement of the compensation. There was also a Writ Petition in the Hon'ble High Court of Karnataka which was filed by the Landlord. It is compromised and the tenants are granted 60% to the compensation. it is also ordered that the tenants are entitled to the concerned compensation if law permits. Upon the Petition by the said Mallappa, and after his death prosecuted by the L.Rs., the compensation is enhanced in terms of the Order dated: 13-08-2014 in LAC No. 78/2012 clubbed with other Petitions. 20. The plaintiffs though having knowledge of the proceedings and the fact that the lands are acquired have not made any claim thus far. They are not the parties to the proceedings under the Land Acquisition Act. In the alternative, it is - 11 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 submitted that the claim, if any, of the plaintiffs is hopelessly barred by time. It is also barred by law of estoppels and acquiescence. “ 12. We also deem it fit to cull out the relevant portion of the cross-examination of DW-1, who has admitted that after death of Shivarudra his eldest son Mallappa was managing the family affairs, same is culled out hereunder: “£À£Àß vÀAzÉ FUÀ fêÀAvÀ E®è JAzÀgÉ ¸Àj. £À£Àß vÀAzÉ ªÀÄ®è¥Àà ªÉÆzÀ®£Éà ªÀÄUÀ JAzÀgÉ ¸Àj. £ÀªÀÄä ªÀÄ£ÉvÀ£ÀzÀ ªÀåªÀºÁgÀ £À£Àß vÀAzÉAiÀÄ ªÉÆzÀ®£Éà ªÀÄUÀ J£ÀÄߪÀ PÁgÀtPÁÌV £ÉÆÃrPÉƼÀÄîwzÀÝgÀÄ JAzÀgÉ ¸Àj.” 13. Upon a thorough examination of the defence set up by the defendants, particularly the statements made in paragraphs 17 to 20 of the written statement, in conjunction with the admissions elicited during the cross-examination of DW-1, two crucial aspects emerge. Firstly, the plaintiffs have successfully demonstrated that Shivarudra was the protected tenant of the suit lands. The records and evidentiary materials relied upon by the plaintiffs, including revenue records, substantiate their assertion that Shivarudra was indeed the original tenant. Therefore, based on this finding, it logically follows that the suit schedule properties constitute joint family - 12 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 tenanted lands. The assertion by the defendants that Mallappa, the eldest son, cultivated these lands in his individual capacity and that these lands were specifically allotted to him in a family partition is unsubstantiated by any cogent rebuttal evidence. Though the defendants have sought to rely on Exhibit D.11 to substantiate their claim, it is evident that this document does not support their contention. On the contrary, the contents of Exhibit D.11 contradict their stance, and the suit schedule properties are not even the subject matter of that mutation extract. The oral partition set up by the defendants is not supported by any documentary evidence, and the properties in question appear to have been held ancestrally by both the plaintiffs and the defendants' family. 14. This Court, in a series of judgments, has consistently held that in a joint family setup, when the eldest son or 'Karta' applies for tenancy rights by filing Form No.7 under the Karnataka Land Reforms Act, 1961, and if the Land Tribunal grants occupancy rights pursuant to such an application, the benefit of such a grant extends to the entire joint family. This principle derives its authority from Section 24 of the Karnataka Land Reforms Act, 1961, which explicitly - 13 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 provides that tenancy rights are heritable in nature. The plaintiffs have placed on record substantial evidence, including Exhibits P.18 to P.21 more particularly Exhibit P.18, a revenue record which dates back to 1931-32 the propositus Shivaridra’s name is shown as the protected tenant, which unequivocally establish that Shivarudra was the original tenant of the suit lands. This crucial piece of evidence negates the individualistic claim of Mallappa over the tenancy and further reinforces the contention that these lands were tenanted jointly by the family. Thus, the grant of occupancy rights in Mallappa’s name does not exclude the other legal heirs from claiming their legitimate share in the tenanted lands. 15. The evidence led by the plaintiffs unequivocally establishes that the suit schedule properties were originally cultivated by Shivarudra. Therefore, the mere fact that occupancy rights were subsequently granted in favour of Mallappa does not negate the legitimate claim of the plaintiffs over these lands. The trial court meticulously analyzed these details and reached a conclusion that aligns with the established legal principles governing joint family tenancy. The defendants, having taken the stance that their father, Mallappa, cultivated - 14 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 the lands in his individual capacity, failed to provide any substantial rebuttal evidence to counter the plaintiffs’ claims. Other than certain revenue records and mutation extracts, the defendants have not furnished any documentary evidence to demonstrate that these tenanted lands were exclusively allotted to Mallappa in a family partition. Additionally, no material evidence has been produced to support their assertion that their father was cultivating these lands as an individual tenant. 16. Furthermore, the grant of occupancy rights under the Karnataka Land Reforms Act, 1961, is intended to benefit all those who have a legitimate claim over the tenancy rights, not merely the individual applicant. The doctrine of tenancy in common, coupled with the presumption that agricultural tenancy rights are not held in isolation but for the benefit of the family, supports the contention that the grant of occupancy rights in favor of Mallappa will also enure to the benefit of the plaintiff. Judicial precedents have upheld the principle that when lands are cultivated by a member of a joint family, the presumption is that the tenancy is for the benefit of the entire family unless proven otherwise. In light of these legal principles, it is evident that the plaintiff is entitled to assert his - 15 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 rights over the suit lands and benefit from the grant of occupancy rights. 17. Given the absence of cogent rebuttal evidence, the court finds itself unable to accept the defence raised by the defendants. Consequently, points No. (i) and (ii) are answered in the negative, thereby rejecting the defendants' claims over exclusive ownership of the suit lands. 18. In light of the findings recorded, this Court has also examined the additional evidence submitted by the defendants. The defendants have sought to introduce a copy of Form No.7 and an order of the Land Tribunal to strengthen their defence. However, these documents fail to alter the overall evidentiary landscape, as the revenue records furnished by the plaintiffs establish beyond doubt that Shivarudra was the protected tenant of the suit lands. The fundamental issue remains unchanged-Mallappa, being the eldest son, applied for occupancy rights, but this does not negate the tenancy rights of the other legal heirs. The grant of occupancy rights in Mallappa’s name does not diminish the plaintiffs' entitlement to seek partition of the suit properties. The principle of enurement - 16 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 applies, ensuring that the entire joint family benefits from the grant of occupancy rights. In view of these findings, the additional evidence sought to be relied upon by the defendants does not warrant reconsideration, and therefore, the application stands rejected. For the foregoing reasons, points No.(i) and (ii) are answered in the ‘Negative’. 19. Findings on point No.(iii):- In light of the findings recorded, this Court has also examined the additional evidence submitted by the defendants. The defendants have sought to introduce a copy of Form No.7 and an order of the Land Tribunal to strengthen their defence. However, these documents fail to alter the overall evidentiary landscape, as the revenue records furnished by the plaintiffs establish beyond doubt that Shivarudra was the protected tenant of the suit lands. The fundamental issue remains unchanged-Mallappa, being the eldest son, applied for occupancy rights, but this does not negate the tenancy rights of the other legal heirs. The grant of occupancy rights in Mallappa’s name does not diminish the plaintiffs' entitlement to seek partition of the suit properties. - 17 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 The principle of enurement applies, ensuring that the entire joint family benefits from the grant of occupancy rights. In view of these findings, the additional evidence sought to be relied upon by the defendants does not warrant reconsideration, and therefore, the application stands rejected. 20. Having considered the overall circumstances, this Court finds that the additional evidence sought to be relied upon by the defendants does not substantiate their claim. The mere filing of Form No.7 by Mallappa, who was the eldest son, does not negate the tenancy rights of the other members of the family. The revenue records, which form a strong foundation for the plaintiffs’ case, consistently reflect that Shivarudra was the protected tenant. Given that tenancy rights are heritable under Section 24 of the Karnataka Land Reforms Act, 1961, the occupancy rights granted to Mallappa must be interpreted as benefiting the entire joint family rather than an exclusive right in his favour. Therefore, any attempt to rely on the Land Tribunal’s order as a basis to defeat the legitimate claims of the plaintiffs is legally untenable. Moreover, the occupancy rights granted to Mallappa do not automatically confer absolute ownership to his legal heirs, excluding the plaintiffs. As such, - 18 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 the additional documents submitted by the defendants are not relevant for the effective adjudication of the dispute at hand. Given these observations, the application submitted by the defendants stands rejected. 21. The learned counsel for the defendants has advanced arguments regarding the plea of partial partition, urging this Court to examine whether the present suit is defective on the ground that certain ancestral properties have been excluded. However, this Court is not inclined to entertain such a plea due to the absence of specific pleadings and framed issues on this aspect. At no point in the proceedings was it argued that the suit was not maintainable on the ground that only a portion of ancestral properties had been brought under partition. Since the trial court was not required to frame an issue on this point, raising this argument for the first time at the appellate stage is impermissible. The defendants cannot now introduce a new line of defence that was not pleaded before the trial court. Courts have consistently held that issues must be decided based on the pleadings before them, and any attempt to raise new contentions at the appellate stage without a proper foundation in the original proceedings cannot be - 19 - NC: 2025:KHC-D:4124-DB RFA No. 100243 of 2019 entertained. Accordingly, point No. (iii) is answered in the negative, and the plea of partial partition is rejected. For the foregoing reasons, appeal is devoid of merits, and accordingly, dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE CKK CT-CMU LIST NO.: 1 SL NO.: 39