- 1 - NC: 2025:KHC-D:4492 RSA No. 218 of 2007 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 218 OF 2007 (PAR-) BETWEEN: SRI. ASHOK S/O. IRAPPA JADHAVAGED, AGE: MAJOR, OCC: AGRICULTURE, R/AT: HALLI GALLI, YAMANAPUR POST, NEHRU NAGAR, BELGAUM. …APPELLANT (BY SRI. T.H. AVIN, ADVOCATE APPEARED THROUGH VC) AND: 1. SIDRAYI S/O. IRAPPA JADHAV, SINCE DEAD BY HIS LR’S. 1(A) SMT. LAKSHMI BAI, W/O. SIDRAYI JADHAV, AGE: 65 YEARS, OCC: HOUSEHOLD, 1(B) RAMESH S/O. SIDRAYI JADHAV, AGE: 45 YEARS, OCC: SERVICE BOTH ARE R/O. MARUTIGALLI, YAMANAPUR, NEHRU NAGAR, BELGAUM. SINCE RESPONDENT NON1(A) AND 1(B) ARE DECEASED BY THEIR LR’S. 1BI SMT. SUVARNA, W/O. RAMESHA JADHAV, SINCE DEAD BY HER LR’S. 1BII RAJKIRAN S/O. RAMESHA JADHAV, AGE: 40 YEARS, OCC: PRIVATE SERVICE, MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:4492 RSA No. 218 of 2007 1BIII PRAKASHA S/O. RAMESHA JADHAV, AGE: 35 YEARS, OCC: PRIVATE SERVICE, 1BIV DYASTIRI, W/O. SOMANATHA PATIL, D/O. RAMESHA JADHAV, AGE: 42 YEARS, OCC: HOUSEHOLD, ALL ARE R/AT HALLIGALLI, YAMANAUR POST, NEHRUNAGAR, BELGAUM. 2. KRISHNA S/O. IRAPPA JADHAV SINCE DEAD BY HIS LRS 2A. BHAGIRATHI W/O. KRISHNA JADHAV, AGE: MAJOR, OCC: HOUSEHOLD, 2B. YALLAPPA KRISHNA JADHAV, AGE: MAJOR, OCC: AGRICULTURE, 2C. RAJU KRISHNA JADHAV, AGE: MAJOR, OCC: SERVICE, 2D. IRAPPA KRISHNA JADHAV, AGE: MAJOR, OCC: SERVICE, 2E. PRAKASH KRISHNA JADHAV, AGE: MAJOR, OCC: SERVICE, ALL ARE R/AT. GOUNDWAD, POST: NEHRU NAGAR, BELGAUM. …RESPONDENTS (BY SMT. AFSHAN A. SHABASHKHAN, ADVOCATE FOR R1B(II)-R1B(IV); R1(A), R2(A), R2(B), R2(C), R2(D) & R2(E) ARE SERVED & UNREPRESENTED) - 3 - NC: 2025:KHC-D:4492 RSA No. 218 of 2007 THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC PRAYING TO SET-ASIDE THE JUDGMENT AND DECREE DATED 31.10.2006 PASSED BY THE PRESIDING OFFICER, FTC-III AND ADDL. SESSIONS JUDGE, BELGAUM, IN R.A.NO.74/2005, AND FURTHER PLEASED TO RESTORE THE JUDGMENT AND DECREE DATED 25.07.2005 PASSED BY III ADDL. CIVIL JUDGE (SR. DN), BELGAUM IN O.S.NO.177/1998, IN THE INTEREST OF JUSTICE. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by defendant No.2 assailing the Judgment and decree dated 31.10.2006 in R.A.No.74/2005 on the file of Presiding Officer, FTC – III and Additional Sessions Judge, Belgaum, allowing the appeal and setting aside the judgment and decree dated 25.07.2005 in O.S.No.177/1998, on the file of III Addl. Civil Judge (Sr.Dn.), Belgaum, dismissing the suit. 2. For the sake of convenience, parties are referred with reference to their status before the Trial Court. - 4 - NC: 2025:KHC-D:4492 RSA No. 218 of 2007 3. It is the case of the plaintiff that land bearing Sy.No.91/6 measuring 4 acres 8 guntas situate at Goundwad Village, Belgaum Taluk and District is the subject matter in the suit which requires to be divided amongst the children of their father – Irappa Jadhav. It is stated in the plaint that the suit property originally belonged to one Apparao, S/o Devrao Kulkarni and that father of the plaintiff was a protected tenant and was cultivating the land in question. It is further stated in the plaint that father of the plaintiff – Irappa Jadhav died about forty years back leaving behind the plaintiff and defendants to succeed to the estate of their father – Irappa Jadhav. It is also stated that the plaintiff and defendants 1 and 2 are the legal heirs of deceased Irappa Jadhav Who died long back. Therefore, it is the case of the plaintiff that the suit schedule property is the joint family property of the plaintiff and defendants, and after the death of their father Irappa Jadhav, the plaintiff and defendants were cultivating the suit schedule property jointly and accordingly, plaintiff sought for share in the suit schedule property. It is also stated that after the promulgation of the Karnataka Land Reforms Act, defendant No.1 was authorised to file Form-7 on behalf of the joint family - 5 - NC: 2025:KHC-D:4492 RSA No. 218 of 2007 and therefore, the Land Tribunal, Belgaum, has granted occupancy right in favour of defendant No.1 as per the order dated 23.02.1980. However, the plaintiff and defendants were jointly cultivating the land in question and accordingly, the plaintiff has filed O.S.No.177/1998 seeking partition and separate possession in respect of the subject land. 4. After service of notice, defendant No.1 entered appearance and filed written statement, seeking dismissal of the suit. It is the case of defendant No.1 that the suit property is a tenanted land and defendant No.1 is the protected tenant of the suit schedule property. It is also stated in the written statement that the father of plaintiff and defendants was not a tenant in the suit schedule property as on the date of filing of Form-7 by defendant No.1, and also the defendant No.1 contended that, the defendant No.1 has taken possession of the suit schedule property from the landlord and therefore, sought for dismissal of the suit. 5. The legal representatives of original defendant No.2 – Krishna, S/o Irappa Jadhav, contended that the tenancy rights have been surrendered by the plaintiff and original defendants - 6 - NC: 2025:KHC-D:4492 RSA No. 218 of 2007 in favour of the landlord – Devrao Kulkarni and therefore, sought for dismissal of the suit. 6. The Trial Court, based on the pleadings and material on record, formed issues. In order to establish the case, the plaintiff has examined himself as P.W.1 and produced 13 documents which were marked as Exs.P1 to P13. Defendant No.1 examined himself as D.W.1 and one more witness as D.W.2 and filed six documents and same were marked as Exs.D1 to D6. The Trial Court, after considering the material on record, by its Judgment and decree dated 25.07.2005, dismissed the suit and feeling aggrieved by the same, the plaintiff preferred R.A.No.74/2005 before the First Appellate Court. The said appeal was contested by the parties. The First Appellate Court, after considering the material on record, by its Judgment and decree dated 31.10.2006, allowed the appeal, consequently set aside the Judgment and decree passed in O.S.No.177/1998. Feeling aggrieved by the same, the defendant No.1 has preferred this Second Appeal. 7. This Court, by order dated 05.09.2013, formulated the following substantial question of law: - 7 - NC: 2025:KHC-D:4492 RSA No. 218 of 2007 “ Whether the lower appellate Court was justified in accepting that suit schedule land are in joint cultivation of plaintiff and defendants 1 and 2, when admittedly defendants 1 and 2 were gainfully employed and residing elsewhere away from the suit schedule land? ” 8. I have heard Sri. T.H. Avin, learned counsel for the appellant/defendant No.1 and Smt. Afshan A. Shabashkhan, learned counsel for the respondent/plaintiff. 9. It is contended by the learned counsel appearing for the appellant that father of the plaintiff – Irappa Jadhav was cultivating the land in question, however, he has surrendered the land in question in favour of original landlord – Devrao Kulkarni and thereafter, defendant No.1 was cultivating the land in question after the death of his father Irappa Jadhav as a tenant and has filed Form-7 seeking occupancy rights which came to be allowed on 23.02.1980 and therefore it is contended by the learned counsel appearing for the appellant that the finding recorded by the First Appellate Court requires interference in this appeal. - 8 - NC: 2025:KHC-D:4492 RSA No. 218 of 2007 10. Per contra, Smt. Afshan A. Shabashkhan, learned counsel appearing for the plaintiff contended that the land in question is the joint family property of father of the plaintiff and defendant No.1 – Irappa Jadhav who was cultivating the land in question and also after the death of Irappa Jadhav, the names of his children were enumerated in the revenue records and therefore, it is contended by the learned counsel for the respondent/plaintiff that, as per the order of change of mutation dated 26.11.1970, the names of all children of Irappa Jadhav were reflected in the revenue records and accordingly, learned counsel for the respondent sought for dismissal of the appeal. 11. In the light of the submissions made by the learned counsel for the parties, I have carefully examined the finding recorded by both the Courts below and perused the records. 12. In order to ascertain the relationship between the parties, the genealogical tree is produced as under: IRAPPA JADHAV | |-----------|----------|-----------| Ashok Sidrayi Krishna Gundu (Def.1) (Plaintiff) (Def.2) (died issueless) - 9 - NC: 2025:KHC-D:4492 RSA No. 218 of 2007 13. Perusal of the genealogical tree would indicate that late Irappa Jadhav – original propositus died during 1956 leaving behind four children namely Ashok(defendant No.1), Sidrayi(plaintiff), Krishna(defendant No.2) and Gundu who died without leaving behind any issues. It is the case of the plaintiff that subject land bearing Sy.No.96/1 measuring 4 acres 8 guntas was originally belonging to Apparao Devrao Kulkarni and father of the plaintiff was cultivating the land in question. The said aspect of the matter was not countered by defendants. However, it is the contention of defendant No.1 that father of the plaintiff and defendants surrendered the land to the original landlord – Apparao, Son of Devrao Kulkarni. Though the said plea has been taken by defendant No.1, however, the perusal of the finding recorded by the Court below would indicate that nothing has been stated by defendant No.1 about on which date the land in question was surrendered in favour of the original landlord – Apparao Devrao Kulkarni and same was given to the defendant No.1 after the death of his father. It is also to be noted by looking into the cross examination of D.W.1, wherein though the Land Tribunal has granted occupancy rights in favour of defendant No.1 based on the - 10 - NC: 2025:KHC-D:4492 RSA No. 218 of 2007 Form-7 filed by defendant No.1, however, during the said period, the defendant No.1 was residing at Bombay. 14. In that view of the matter, the finding recorded by the First Appellate Court is just and proper by interfering with the erroneous Judgment and Decree passed by the Trial Court, and the Trial Court, without assessing the material on record in the right perspective has passed the impugned Judgment and decree and therefore, the Judgment and decree passed by the First Appellate Court requires to be confirmed herein by answering the substantial question of law in favour of the plaintiff. 15. 15. In the result, the appeal fails. Pending I.As. if any, do not survive for consideration. Sd/- (E.S.INDIRESH) JUDGE sac CT-MCK List No.: 1 Sl No.: 36