- 1 - HC-KAR NC: 2025:KHC-D:7942 RSA No. 100583 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 23RD DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.100583 OF 2023 (PAR/POS) BETWEEN: SHIVAYYA S/O. NINGAYYA VASTRAD, AGE: 58 YEARS, OCC: AGRICULTURE, R/O: GULEDGUDDA, TQ: BADAMI, NOW AT HAMSANUR, TQ: BADAMI, DIST: BAGALKOT. …APPELLANT (BY SRI. IRANAGOUDA K. KABBUR, ADVOCATE) AND: 1. GIRIJAWWA D/O. NINGAYYA VASTRAD, AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O: WARD NO.1, NEAR SARAF BAZAAR, GULLEDAGUDDA, TQ: BADAMI – 587 203, DIST: BAGALKOT. 2. RAVIDER S/O. TIPPANNA CHABBI, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: BUDIHAL S. G., TQ: BADAMI – 587 201, DIST: BAGALKOT. …RESPONDENTS (BY SRI. SIDDAPPA S. AJJAN, ADVOCATE FOR R2; NOTICE TO R1 IS HELD SUFFICIENT) THIS RSA IS FILED UNDER SECTION 100 OF C.P.C. PRAYING TO CALL FOR RECORDS; ALLOW THIS APPEAL AND PARTLY MODIFY THE JUDGMENT AND DECREE DATED 06.04.2021 PASSED BY SENIOR CIVIL JUDGE AND JMFC BADAMI IN R.A.NO.17/2017 BY CONSIDERING THE CLAIM OF THE PLAINTIFF IN RESPECT OF ITEM NO.1 OF SUIT SCHEDULE PROPERTY. CONSEQUENTLY, PARTLY MODIFY THE JUDGMENT AND DECREE DATED 01.02.2017 PASSED BY ADDITIONAL CIVIL JUDGE, BADAMI SITTING AT GULEDAGUDDA IN O.S.NO.181/2010 BY CONSIDERING THE CLAIM OF THE PLAINTIFF IN RESPECT OF ITEM NO.1 IS SUIT SCHEDULE PROPERTY. Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:7942 RSA No. 100583 of 2023 THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is by the plaintiff being aggrieved by the judgement and decree dated 01.02.2017 passed in O.S.No.181/2010 on the file of Additional Civil Judge, Badami Sitting at Guledagudda by which the suit of the plaintiff for partition and separate possession was partly decreed granting half share in Item No.2 of the suit properties while rejecting his suit for Item No.1, which is confirmed by the judgement and order dated 06.04.2021 passed in R.A.No.17/2017 on the file of the Senior Civil Judge and JMFC, Badami. 2. Brief facts of the case are that the plaintiff and defendant No.1 are the children of one Ningayya Vastrad and defendant No.2 is the purchaser of Item No.2 of the suit properties. The case of the plaintiff is that the suit schedule properties are the joint family properties which originally belong to their father Ningayya. After his - 3 - HC-KAR NC: 2025:KHC-D:7942 RSA No. 100583 of 2023 demise, plaintiff and defendant No.1 succeeded to the same by way of inheritance each being entitled for half share equally. That without the consent and knowledge of the plaintiff, defendant No.1 had sold Item No.1 of the suit schedule properties in favour of defendant No.2 on 17.06.2010 and the said sale is not binding on the plaintiff. Hence, suit for partition. 3. Defendants No.1 and 2 appeared and filed written statement. It is contended that suit Item No.1 of the properties is not a joint family property. That defendant No.1 was working as a teacher for over 18 years in a private school at Guledagudda and also owned many buffaloes and she had income from her private tuitions as well. That out of the income so generated, defendant No.1 purchased Item No.1 of the suit properties from one Basappa Parappa Giraniwaddar for sale consideration of Rs.2,000/- in terms of deed of sale dated 08.01.1989 as such Item No.1 of the suit properties is self-acquired property and the plaintiff has no share, right, - 4 - HC-KAR NC: 2025:KHC-D:7942 RSA No. 100583 of 2023 title and interest over the same. That she sold the said property in favour of defendant No.2 for her financial need. As such, the suit in respect of Item No.1 of the suit properties was not maintainable. 4. Defendant No.2 filed his written statement contending that he is a bonafide purchaser of item No.1 of the suit properties for valuable consideration and has been in possession and enjoyment of the same ever since the date of purchase. As such, sought for dismissal of the suit. 5. The Trial Court framed the following issues: “Issues 1. Whether plaintiff proves that, the suit schedule property is the ancestral joint family properties of the plaintiff and defendant No.1? 2. Whether the plaintiff profess that, defendant No.2 has no right, title or interest over the suit schedule property bearing R.S.No.8/1+3/2 measuring 3-Acres 10-Guntas of Hamsanur village. 3. Whether the plaintiff is entitled ½ share and separate possession in the suit schedule property? 4. Whether the defendant No.1 proves that suit schedule property is self acquired property of her? 5. Whether the defendant No.1 proves that there is no cause of action to file this suit? - 5 - HC-KAR NC: 2025:KHC-D:7942 RSA No. 100583 of 2023 6. Whether the defendant No.2 proves that he is the bona- fide purchaser of the suit property and he is in possession of the suit land after sale deed executed by the defendant No.1? 7. What order or decree?” 6. Plaintiff examined himself as PW.1 and exhibited 2 documents marked as Ex.P.1 and Ex.P.2 and 2. Plaintiff examined two more witnesses as PW.2 and PW.3. Defendant No.1 examined herself as DW.1 and exhibited 7 documents marked as Ex.D.1 to Ex.D.6. Defendant No.2 examined himself as DW.2 and marked one document marked as Ex.D.7. On appreciation of the evidence, the Trial Court answered issue Nos.1, 3 partly in the affirmative and issue No.4 and 6 in the affirmative and issue No.2 and 5 in the negative and consequently partly decreed the suit by holding that the plaintiff was entitled for ½ share in the suit Item No.2 bearing Sy.No.241 measuring 2 acres 26 guntas of land and dismissed the suit as regards Item No.2 of the suit property holding the same as self-acquired property of defendant No.1. Being aggrieved, the plaintiff preferred Regular Appeal in - 6 - HC-KAR NC: 2025:KHC-D:7942 RSA No. 100583 of 2023 R.A.No.17/2017. Considering the grounds urged, the First Appellate Court framed the following points for its consideration: “Points 1. Whether the plaintiff proves that the item No.1 property is the joint family property acquired by him and defendant No.1 out of their joint exertion? 2. Whether Judgment and Decree passed by the trial Court requires any interference with? 3. To what order?” 7. On re-appreciation of evidence, the First Appellate Court dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same, plaintiff is before this Court. 8. Learned counsel for the appellant/plaintiff reiterating the grounds urged in the memorandum of appeal, vehemently submits the Trial Court as well as the First Appellate Court have grossly erred in not appreciating the evidence placed on record by the plaintiff to prove the Item No.1 of the suit properties is the joint family property. He submits merely because there was an - 7 - HC-KAR NC: 2025:KHC-D:7942 RSA No. 100583 of 2023 admission by the plaintiff with regard to Item No.1 of the suit properties having been purchased by the defendant No.1 out of her income, the Trial Court and the First Appellate Court ought not to have decreed the suit. Though a specific issue had been framed casting burden of proof on the defendant No.1 to prove the said property was the self-acquired property, that without defendant No.1 discharging the said burden by leading evidence in a manner known to law, the Trial Court and the First Appellate Court ought not to have decreed the suit. 9. He father submits that the plaintiff had specifically pleaded and proved that the income derived from Item No.2 of the suit properties was used for the purpose of purchase of item No.1 of the suit properties which aspect of the matter has not been accepted. He further submits that in the evidence the plaintiff had also suggested that they were doing the Khanavali (eatery business) both the plaintiff and defendant No.1 and the income derived there from was utilised for purchase of the - 8 - HC-KAR NC: 2025:KHC-D:7942 RSA No. 100583 of 2023 property. He submits non-consideration of these evidence on record has resulted in perversity giving raise to substantial question of law. 10. Per contra, learned counsel for the defendant No.2 submits that admittedly Item No.1 of the suit properties was purchased by the defendant No.1 in terms of the deed of sale dated 17.06.2010. That the defendant No.1 had produced document supporting her claim of she having independent income by way of Ex.D.5 and Ex.D.6 regarding her service records. Thus, the Trial Court and the First Appellate Court relying upon the said documents and in the absence of any evidence led by the plaintiff to the contrary, have rightly dismissed the suit with regard to Item No.1 of the suit properties and therefore no substantial question of law would arise for consideration. Hence, seeks for dismissal of the appeal. 11. Heard. Perused the records. 12. Plaintiff being the brother of defendant No.1 and both being children of one Sri.Ningayya is not in - 9 - HC-KAR NC: 2025:KHC-D:7942 RSA No. 100583 of 2023 dispute. The only issue being raised before the Trial Court, First Appellate Court and this Court is with regard to the ownership of Item No.1 of the suit properties. It is also not in dispute that the said property is purchased in terms deed of deed of sale dated 08.01.1989 as per Ex.D.1. 13. It is settled principle of law that merely because the family is a joint family, the presumption of property being joint cannot be drawn. The initial burden of proving the property being the joint family property is on the person who asserts so. It is only thereafter the burden would shift to the person who asserts the property to be the self-acquired property. 14. Perusal of the plaint as filed by the plaintiff would not indicate any whisper whatsoever with regard to the nature of the income being generated by Item No.2 of the suit properties. Though learned counsel for the appellant submitted that during the evidence a suggestion was made to the defendant No.1 with regard to the income being generated out of the Khanavali (eatery - 10 - HC-KAR NC: 2025:KHC-D:7942 RSA No. 100583 of 2023 business) jointly by the plaintiff and defendant No.1, no material in this regard is produced either. On the other hand, defendant No.1 has produced Ex.D.5 being a certificate issued by Bal Vikas Mandir as an educational institution as well as Ex.D.6 her service certificate indicating she having been working as a teacher from 01.06.1982 and her appointment having been approved. The genuineness or otherwise of the said documents has not been discredited. Clearly defendant No.1 was having her own employment, earning her own salary. That apart plaintiff in his evidence as taken note of by the Trial Court as well the First Appellate Court, the Trial Court at paragraph No.14, has categorically admitted to defendant No.1 having her own independent income out of her salary from her avocation as a teacher. He also admits that defendant No.1 is the absolute owner of the Item No.2 of the suit properties and that she had every right to sell the suit Item No.1 properties in favour of defendant No.2 who is the owner of the property. The aforesaid depositions in the light of the pleadings in the plaint and the contentions - 11 - HC-KAR NC: 2025:KHC-D:7942 RSA No. 100583 of 2023 urged in the written statement cannot be termed as a stray admission particularly when the very case of the plaintiff being that the Item No.1 of the suit properties is the joint family property. No error therefore can be found with the Trial Court taking the said admission as an admission of ownership of the defendant No.1 over Item No.1 of the suit properties. As already noted, apart from the aforesaid admission the defendant No.1 has independently established her income from her profession as a teacher by producing Ex.D.5 and Ex.D.6. In the absence of plaintiff discharging his burden of proof with regard to the income that was being generated from Item No.2 of the suit properties and in the absence of any pleading whatsoever in that regard and also with regard to they jointly running khanavali business, the Trial Court and the First Appellate Court, in the considered view of this Court have committed no error in holding the Item No.1 of the suit properties is the self-acquired property of defendant No.1. No substantial question of law would therefore arise for consideration. - 12 - HC-KAR NC: 2025:KHC-D:7942 RSA No. 100583 of 2023 15. Appeal is dismissed. 16. Judgement and decree dated 01.02.2017 passed in O.S.No.181/2010 on the file of Additional Civil Judge, Badami Sitting at Guledagudda and judgement and decree dated 06.04.2021 passed in R.A.No.17/2017 on the file of the Senior Civil Judge and JMFC, Badami are confirmed. Pending I.A. stands disposed of. Sd/- (M.G.S. KAMAL) JUDGE SH/CT-ASC List No.: 1 Sl No.: 7