- 1 - NC: 2025:KHC-D:5895-DB RFA No. 100131 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 2ND DAY OF APRIL, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO. 100131 OF 2018 (PAR/POS) BETWEEN: 1. SMT. SANGAVVA W/O. CHANAVEERAYYA HIREMATH @ KALADGIMATH, AGE: 43 YEARS, OCC: AGRICULTURE, R/O: CHITTARAGI, TQ: HUNGUND, DIST: BAGALKOT-587101. 2. SMT. MAHANTAVVA W/O. SHEKARAYYA HIREMATH, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: CHITTARAGI, TQ: HUNGUND, DIST: BAGALKOT-587101. …APPELLANTS (BY SRI. ANAND R.KOLLI, ADVOCATE) AND: 1. SMT. SHANTA @ SHANTAMMA W/O. BASAYYA HIREMATH, AGE: 66 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O: ILKAL, TQ: HUNAGUND, DIST: BAGALKOT-587101. 2. SMT. SHIVAJATAYYA W/O. GURULINGAYYA KALADGIMATH, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: CHITTARAGI, TQ: HUNGUND, DIST: BAGALKOT-587101. VISHAL NINGAPPA PATTIHAL Digitally signed by VISHAL NINGAPPA PATTIHAL Location: HIGH COURT OF KARNATAKA Date: 2025.04.19 11:28:11 +0530 - 2 - NC: 2025:KHC-D:5895-DB RFA No. 100131 of 2018 3. SRI. SATAVEERAYYA S/O. SHIVAJATAYYA KALADGIMATH, AGE: 83 YEARS, OCC: AGRICULTURE, R/O: CHITTARAGI, TQ: HUNGUND, DIST: BAGALKOT-587101. SRI. GURULINGAYYA S/O. SHIVAJATAYYA KALADGIMATH, SINCE DEAD BY HIS LRs., 4. SRI. SIDDAYYA S/O. GURULINGAYA KALADGIMATH, AGE: 43 YEARS, OCC: AGRICULTURE, R/O: CHITTARAGI, TQ: HUNGUND, DIST: BAGALKOT-587101. 5. SMT. GOURAVVA W/O. IRAYYA SANGONDIMATH, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O: SHIRUR, TQ: BAGALKOT, DIST: BAGALKOT-587101. …RESPONDENTS (VIDE COURT ORDER DATED 22.01.2025 -APPEAL AGAINST R1 IS DISMISSED; APPEAL AGAINST R2 AND R3 ARE ABATED; NOTICE TO R4 AND R5 ARE SERVED) THIS RFA IS FILED UNDER SEC. 96 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 25.01.2018 PASSED IN O.S.NO.31/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, HUNGUND, PARTLY DECREEING THE SUIT 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 - 3 - NC: 2025:KHC-D:5895-DB RFA No. 100131 of 2018 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) The captioned appeal is filed by plaintiffs 1 and 2, who are aggrieved by denial of share in Item No.2 of schedule ‘B’ property bearing Sy.No.72/2 measuring 7 acres 19 guntas. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial court. 3. Before we proceed to examine the rival contentions, we deem it appropriate to take cognizance of the family tree, which is as under: Shivajatayya (died 1952) =Chennamma (died 1968) Sataveerayya Gurlingayya Chanabasayya Sangavva Mahantavva (D-1) (D-2) (Died 2015) (Plff.1) (Plff.2) Iravva Gangavva (1st wife died 1964) (2nd wife D-5) Shiddayya (D-3) Shanta Gouravva Shivajatayya (Plff-3) (D-4) (Plff-4) - 4 - NC: 2025:KHC-D:5895-DB RFA No. 100131 of 2018 4. The plaintiffs 1 and 2 claimed to be the daughters of propositus Shivajatayya. Plaintiffs 1 and 2 along with their nephew and niece namely Shivajatayya and Shanta who are arrayed as plaintiffs 3 and 4 respectively filed partition suit contending that suit schedule properties are joint family properties and they are entitled for their legitimate share in the suit schedule properties. Plaintiffs contended that propositus Shivajatayya died in the year 1952 and he was the owner of Item No.1 of schedule ‘B’ property which is an ancestral property. Plaintiffs also alleged that Item No.2 of schedule ‘B’ property bearing Sy.No.72 was a joint family tenanted land and propositus Shivajatayya was the protected tenant and therefore plaintiffs contended that the occupancy rights granted to the defendant No.2 – Gurulingayya was on behalf of the joint family and accordingly, they are entitled for their legitimate share in the suit schedule properties. 5. The suit is filed alleging that defendant Nos.1 and 2 have created documents and denying plaintiffs’ - 5 - NC: 2025:KHC-D:5895-DB RFA No. 100131 of 2018 legitimate share in the suit schedule properties and therefore, the present suit is filed. 6. Though defendant No.2 was served with summons, he passed away and defendant Nos.3 and 4 being his children were already on record and same was taken note of. 7. Defendant No.3 who is the son of defendant No.2 he filed an independent statement and admitted the relationship of the parties. He further admitted that suit No.1 is the joint ancestral property. Defendant No.3 however stoutly denied the claim of plaintiffs insofar as item No.2 in schedule B property. Defendant No.3 asserted that suit item No.2 is the absolute property of the defendant No.2 and therefore, plaintiff Nos.1 and 2 and defendant No.1 have no right, title and interest over the item No.2. Defendant No.3 also disputed the claim of plaintiff Nos.1 and 2 over item No.2. Based on rival contentions, the Trial Court formulated issues. Plaintiffs and defendant No.3 led oral and documentary evidence. - 6 - NC: 2025:KHC-D:5895-DB RFA No. 100131 of 2018 Plaintiffs examined first plaintiff as PW1 and third plaintiff as PW2 and in all produced 17 documents which were marked as Exs.P1 to P17. Defendant No.3 examined himself as DW1 and relied on documentary evidence which were marked as Exs.D1 to D5. The Trial Court answered issue No.1 partly in the affirmative and held that plaintiffs are entitled for share in item No.1 of schedule B property. Trial Court in the absence of evidence however declined to grant any share in item No.2 property. Suit was partly decreed and plaintiff Nos.1 and 2 were denied share in item No.2 of schedule B property. The present appeal is filed feeling aggrieved by denial of share in item No.2 property which is the subject matter of the captioned appeal. 8. Heard the learned counsel appearing for plaintiff Nos.1 and 2. The contesting defendant No.3 who is arrayed as respondent No.4 is served and has not chosen to contest this appeal. The appeal is dismissed as abated against respondent Nos.2 and 3, who are arrayed - 7 - NC: 2025:KHC-D:5895-DB RFA No. 100131 of 2018 as plaintiff No.4 and defendant No.1 respectively. The appeal is also dismissed against defendant No.1 who is arrayed as respondent No.1 before this Court. Though the appeal is dismissed as abated against respondent No.1, we are of the view that the right to prosecute the appeal survives as against respondent No.4 who is the contesting party and was arrayed as defendant No.3. 9. We have carefully examined the pleadings in the plaint and the evidence let in by the plaintiffs. We have also given our anxious considerations to the rebuttal evidence let in by the defendant No.3. Following point that would arise for consideration is: “Whether the Trial Court was justified in dismissing the suit insofar as item No.2 of schedule B properties [Sy. No.72/2 measuring 7 acres 19 guntas] is concerned?” Findings on the above point: 10. The plaintiffs, who are the daughters of the propositus Shivajatayya, have contended that Item No.2 of Schedule B properties constitute joint family tenanted - 8 - NC: 2025:KHC-D:5895-DB RFA No. 100131 of 2018 land and that their father, Shivajatayya, was the protected tenant in respect of the said property. However, this assertion remains unsubstantiated as the plaintiffs have failed to produce any documentary evidence demonstrating that Shivajatayya was in possession or cultivation of Item No.2 as a tenant. Furthermore, there is no material placed on record, such as entries in the Record of Rights (RTC), indicating that Shivajatayya was ever recognized as a protected tenant of the said property. 11. The only document relied upon by the plaintiffs in this regard is Form No.7, which is marked as Exhibit P13. A close scrutiny of this document reveals that it was filed by defendant No.2, Gurulingayya, in his individual capacity. Notably, the family details furnished in this application include only his wife and children, with no mention whatsoever of the propositus Shivajatayya. This further weakens the plaintiffs' case. The legal burden initially rests upon the plaintiffs to establish their foundational claim that Shivajatayya was the protected - 9 - NC: 2025:KHC-D:5895-DB RFA No. 100131 of 2018 tenant. Until this burden is satisfactorily discharged, there can be no question of shifting the onus onto defendant No.3 to prove that the grant of occupancy rights in favour of defendant No.2 enured to the benefit of the entire joint family. 12. It is pertinent to observe that, at the relevant point of time when the Form No.7 application was filed by defendant No.2 seeking grant of occupancy rights, the plaintiffs being daughters of Shivajatayya were mere infants. This fact has been duly noted and further reinforces the view that they could not have been involved in or aware of any tenancy arrangement at the time. Despite their claim, the plaintiffs have not placed on record any cogent material to demonstrate that Shivajatayya, during his lifetime, held the status of a protected tenant in relation to Item No.2 of Schedule B. 13. The only mention of this claim is in paragraph 3 of the plaint, which contains uncorroborated assertions devoid of supporting evidence. There are no records, - 10 - NC: 2025:KHC-D:5895-DB RFA No. 100131 of 2018 documents, or testimonies presented by the plaintiffs to substantiate that their father had cultivated the said land or that he was ever treated as a protected tenant by the relevant authorities. In light of these deficiencies, we find no infirmity in the decision of the Trial Court to decline any share in Item No.2 to the plaintiffs. Accordingly, the point formulated is answered accordingly. 14. For the foregoing reasons, we proceed to pass the following: ORDER Appeal is dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE CLK & RSH / Ct:vh List No.: 1 Sl No.: 27